Packard v. Johnson

By the Court: I. The answer of the defendant Johnson, set up title in himself to the whole of the premises described in the complaint, and was evidence of an ouster of the plaintiff sufficient, in that respect, to enable him to maintain this action.

II. The title to the premises vested in the plaintiff and Sanor as tenants in common, for the assignment of the cer[549]tificate of purchase from. Melville to them, was recorded before the delivery of the sheriff’s deed upon the Cocke execution sale.

III. When the defendant Johnson entered under his purchase from Sanor, he was, in point of law and fact, a tenant in common with Packard. Sanor, his grantor, was in possession as tenant in common with Packard, and the title under which both Sanor and Packard held the premises was matter of record. In this view, it was necessary for the defendant Johnson, in order to sustain his defense based upon' the Statute of Limitations, to 'prove such an ouster of his co-tenant Packard, as Sanor must have proved had he remained in possession and set up an adverse possession in himself for the statutory period. In either case, an actual ouster of Johnson must have been proven in order to sustain the defense. By actual ouster we do not mean, of course, an actual turning out by the shoulder, but acts of such open and hostile occupation as have always been held necessary, in order to put the co-tenant upon notice or upon inquiry, which is the same thing. Mere exclusive occupation, removing of fences, and devoting the estate to the usual purposes of pasturage or husbandry, and payment of taxes by the co-tenant in possession, are not, of themselves, sufficient. The evidence in this case amounts to nothing more than these, and, though continued for more than five years, they are.not sufficient to bar the right of entry of the plaintiff.

Judgment and order denying a new trial reversed) and cause remanded for a new trial.