dissenting: I am unable to concur in the present disposition made of defendant’s appeal. This, a proceeding in partition, is, in effect, an action to recover three-fifths interest in a lot in the city of Goldsboro under deeds from three of the children and heirs at law of Needham Kennedy, deceased, Bryant, Levy, and William, duly proven and registered in Wayne County, in July and August, 1916. The two other children and heirs at law being Fannie, wife of Matthew Aldridge, and Ida, wife of John Darden.
The action was instituted and the summons in the cause bears date 15 March, 1920, and defendant resists a recovery on allegations with evidence tending to show that at the time plaintiff acquired his deeds from these three Kennedy children he was in charge and control of the property as agent of the defendant, and the title relied on by him was obtained in fraud of defendant’s rights and in breach of plaintiff’s trust and duties as aeent.
*231Second, that' defendant and those under whom it claims have been in the open, exclusive, adverse, and continuous possession of said property, asserting title thereto for more than 7 years next before 'action brought.
The allegation and issue as to plaintiff’s agency and breach of trust. was submitted to the jury and resolved against the defendant. On the position as to title by adverse possession, the court, in effect, ruled that on the entire evidence, a 7 years adverse possession was insufficient to mature title in defendants, but that 20 years is required for the purpose, to which ruling defendant excepted. There was judgment for plaintiff, and defendant appealed. On defendant’s exception as to the statute of limitations the facts in evidence permit the inference if they do not require the finding.
“That Needham Kennedy died in 1898, owner and in possession of certain property, including that in dispute. He was survived by five children: Ida Darden, Fannie Aldridge, Levi Kennedy, Bryant Kennedy, and 'William Kennedy; and by a widow (the stepmother of the children), who died in 1908. After the death of the widow the children made arrangements for the division of the property, whereby William and Bryant (who lived in New. Jersey) were to receive money, and Ida, Fannie, and Levi were to divide the property, Ida to get the lot now in controversy (designated “A”), and Fannie and Levi to get other lots (designated “B” and “C,” respectively).
Accordingly, pn 17 June, 1909, Bryant conveyed “A” to Ida in fee; on 24 January, 1910, William also conveyed “A” to Ida in fee; and during 1910, Levi conveyed “A” to Ida in fee; the deeds from Bryant and "William were probated and delivered on the dates named, but were not recorded until 12 April, 1921. The deed'from Levi was lost and never recorded. The arrangements were completed on 21 March, 1910, in the office of Gol. A. 0. Davis, an attorney and notary, by the exchange of the following deeds for the following property: from Fannie Aldridge and husband, Matthew Aldridge, to Ida Darden for “A”; from’Fannie and Matthew Aldridge to Levi Kennedy for “C”; and from Levi Kennedy and wife and Ida Darden and husband to Matthew Aldridge for “B.” The deeds to “B” and “C” were immediately probated. All three parties had gone into possession of their respective lots after the death of the widow; and they remained in possession. Levi later sold his lot.
The deed for “A” from Fannie and husband to Ida was probated 22 March, 1912. To secure a sum due him, Ida gave Matthew Aldridge a mortgage on “A” dated and recorded 21 March, 1910. Ida received the rents from “A” from her stepmother’s death until 20 May, 1912. On that day Matthew sold the property under mortgage to Capt. A. J. Brown, the deed being recorded 11 June, 1912.
*232Captain Brown, and after Ms death Ms heirs, received the rents of “A” from that date until 27' March, 1915. On that day the Brown heirs conveyed the lot to Bank of Warsaw, the defendant, by deed recorded 1 May, 1916. The bank has received the rent from the property from then until the present.
From these facts it appears that under a deed from Fannie Aldridge, made pursuant to the parol division of the estate, there has been continuous possession of the land in controversy, open, adverse, and in the assertion of ownership in Ida Darden and her grantees, including defendant, for eight years before this suit was entered.
Second, that Ida Darden, while in undisputed and exclusive possession, asserting title, executed a mortgage to Matthew Aldridge for the land in dispute, and the grantees of Aldridge possessed the land under the same for more than seven years before suit was entered.
Third, that Matthew Aldridge, said grantee, pursuant to powers in the deed, conveyed the land in dispute to A. J. Brown, and Brown and his descendants and grantees, including defendant, possessed the same in assertion of ownership for more than seven years before suit was entered.
Fourth, and it appears further that this occupation and possession in assertion of title by Ida Darden and her grantees under deeds purporting to convey the entire property in dispute was had in pursuance of a parol division of the real and personal property of Needham Kennedy in which the three grantors of plaintiff, children of Needham, took part, and that these three grantors, as early as 1910, had executed to Ida Darden deeds for the land in controversy, two of them not being registered, however, until 1921, and the other lost, and it is under these and a similar deed from Fannie Aldridge, the other daughter, and her grantees, that the possession and occuj>ation of the defendants has been continually maintained.
It is very generally held that in case of tenants in common an occupation in assertion of ownership and sole reception of the rents and profits will not of itself mature a title in the occupant as against his cotenants for any period short of twenty years. It is said that after that period of time an ouster of the cotenants will be presumed, but no shorter time will suffice. Adderholt v. Lowman, 179 N. C., 547; Dobbins v. Dobbins, 141 N. C., 210. And in this jurisdiction it has been insistently held that the position is not affected because the occujiation of one of the tenants is under a deed purporting to convey the entire property whether that deed is from one of the other cotenants or a stranger. Boggan v. Somers, 152 N. C., 390; Clary v. Hatton, 152 N. C., 107; Caldwell v. Neely, 81 N. C., 114; Covington v. Stewart, 77 N. C., 148; Cloud v. Webb, 14 N. C., 317.
*233As pointed out in Roper Lumber Co. v. Richmond Cedar Works, 165 N. C., 83, this position requiring 20 years occupation by one tenant in common under a deed conveying tbe entire interest bas been carried very mueb further in this State than elsewhere, our decisions holding that the title of a cotenant will not be destroyed by occupation for any period short of 20 years, though the claimant may have known that the occupant was asserting sole ownership under a deed purporting to convey the entire property. But the ruling is fully established here, and we have no disposition to question it.
In all of these decisions, however, the tenant in common, occupant of the property, was endeavoring to assert title against a cotenant who had in no way acquiesced in or recognized the occupant’s claim of sole ownership, and none of them, so far as examined, would uphold the position on the facts presented in this record, where the claimants have joined in a division of the property awarding the sole ownership to the tenant in possession and assuredly so where they have made deeds to such in recognition of the division as made.
The ruling involved in these North Carolina decisions, as shown, rests upon the position that an ouster will not be presumed against a tenant in common by mere occupation for any period short of twenty years, though such occupation is under color of title and to the knowledge of the claimant, but all the authorities here and elsewhere are to the effect that there may be an actual ouster of one tenant in common by another. Mott v. Land Co., 146 N. C., 525-526, citing Covington v. Stewart, 77 N. C., 148; Tyler on Ejectment, p. 882. The test in such cases is whether the occupation of the tenant in possession, asserting title, has become hostile to cotenant, and both the reason of the thing and the authorities appertaining to the subject are to the effect that a conveyance of a grantor to a grantee and occupation in assertion of ownership under it will constitute a hostile holding. Kirkman v. Holland, 139 N. C., 185-189; Trustees v. Bank of Asheville, 101 N. C., 483. And it has been directly held that possession with assertion of ownership pursuant to a parol partition of land will amount to a disseizin and the occupation will be considered as hostile to the title of the others taking part therein. Collier v. Paper Corporation, 172 N. C., 74; Boston & Worcester R. R. v. Sparhawk et al., 46 Mass., 469; Russell v. Tenant, 63 West Va., 623; Justice et al. v. Lawson, 46 West Va., 163.
True, in the North Carolina case referred to, the possession was for 20 years and more, but that was only ruled on in view of the ruling that a parol partition acquiesced in and acted on for 20 years becomes valid, and it was fully recognized that it created at the inception a possession hostile to the parties concerned and all others.
*234Tbe court below seems to have been influenced by tbe consideration tbat tbe deeds pertinent to tbe question were not registered till after those of plaintiff, and tbat tbe parol partition was invalid, and tbis is referred to in tbe principle opinion as a reason for tbe decision. But neither tbe deeds nor tbe partition are relied on or referred to as controlling tbe title, but tbe question here is, "What effect should they be allowed on tbe nature of defendant’s occupation — did they show tbat tbe possession of Ida Darden and those claiming under her was hostile to tbe plaintiff, who has bought from tbe eotenants, and all of whom took part in tbe parol partition and bave made deeds in recognition of tbe title of their sister under whose deed defendants claim and bave bad possession, asserting title for more than 7 years?
We are cited by counsel for appellees to Janney v. Robbins, 141 N. C., 406, and other cases to tbe effect tbat an unregistered deed is not to be considered color of title as against a claimant under a registered deed from same source — under tbe restricted facts there appearing tbe cases so bold; but, as we bave endeavored to show, defendant here is not relying on these unregistered deeds either for title or for color. Defendant has color both under tbe deed from Matthew Aldridge and wife and from tbe mortgagee deed — under which it claims, and tbe unregistered deed of tbe three tenants as stated and referred to and relied on only as they may affect tbe character of defendant’s possession and as showing tbat bis occupation and claim of ownership was of a hostile character'— assured and acquiesced in by plaintiff grantors, and so amounting to an ouster.
In my opinion, if tbe facts referred to and presented in tbe record are accepted by tbe jury, tbe defendant should be declared tbe sole owner, and for tbe error in refusing to submit tbis view of tbe case there should be a new trial of tbe issue.
Walker, J"., concurring in dissenting opinion.