AVERY, J.

Two grants were introduced, both of which covered the land in controversy. The one issued to Duncan McFarland, 13 January, 1847, on an entry dated 4 July, 1801, was offered by the plaintiff, while the other, introduced by the defendant, was issued to Duncan McLaurin 31 March, 1842, on an entry made in 1841.

The plaintiff offered, also, a deed from John McKay to J. B. Buchanan, dated 25 September, 1863, together with several mesne conveyances, connecting the plaintiff by a regular chain with said Buchanan, and offered testimony tending to show continuous possession under said deeds as color of title on the part of plaintiff through his tenant, and those under whom he claims, from 25 September, 1803, till 1862.

The defendant introduced a deed from Duncan McLaurin (the grantee in the patent of 1842) to Ferdinand McLeod, and also a subsequent deed from said McLeod to John L. Fairley, dated 16 April, 1858. It was in evidence, also, that John L. Fairley died before 1862; that Thomas Gibson qualified as his administrator, and died in 1872, and that the defendant was appointed and qualified as administrator de bonis non of said Fairley, 7 May, 1876. The defendant, as administrator of said Fairley, instituted a special proceeding in July, 1878, to sell the land conveyed by McLeod to him (which, it is admitted, covers the land in dispute, and is the same granted to McLaurin in 1842), and under a decree in said proceeding it was sold to make assets, when William H. McLaurin became the purchaser. The defendant, as administrator, conveyed to said McLaurin in pursuance of said decree of 17 March, (678) 1879, and on the next day, 18 March, 1879, said McLaurin conveyed the same land to the defendant. For the purposes of this appeal, it was admitted that the estate of John L. Fairley descended to his five children, three of whose claims to the land are not barred, and two of whose claims are barred, by the statute of limitations.

The defendant also attempted to establish his title by a chain of mesne conveyances connecting him with the grant to Duncan McFarland. The well-settled rule is, that an entry of land creates an inchoate equity in it, which, upon the payment of the prescribed amount of the purchase-money to the State within the time limited by the law (Code, sec. 276; Rev. Stat., ch. 42, sec. 11; Laws 1808, ch. 759), will entitle the enterer to a grant, and where a junior enterer has, meantime, with actual or constructive notice of the older entry, procured a grant for the same land, the latter may be declared a trustee for the former, and compelled to convey the land to him. Plemmons v. Fore, 37 N.C. 312; Featherstone v. Mills, 15 N.C. 596; Harris v. Ewing, 21 N.C. 369. Where an enterer allows his entry to lapse before taking out his grant the entry becomes null, and any grant founded upon it is also void on its face, and, even without a direct proceeding to impeach it, will be treated by the courts as inoperative and insufficient to divest title out of the State, because it is apparent on inspection that it was issued without authority of law, when the efficacy of the entry was gone by the efflux of time, and, in this case, after the right of another, who had shown more diligence, accrued. Stanly v. Biddle, 57 N.C. 383; The Code, secs. 2767-2768; Rev. Stat., ch. 42, secs. 11-12; act of 1809, ch. 771; Wilson v. Land Co., 77 N.C. 457; Horton v. Cook, 54 N.C. 270; Bryson v. Dobson, 38 N.C. 138.

Grants that appear upon inspection to have been issued in (679) the face of any positive prohibition contained in a statute, have been uniformly treated even in legal, as distinguished from equitable proceedings as utterly void; but courts of law, under the former practice, would refuse to hear testimony dehors a grant to impeach it for fraud in obtaining it, and would hear parol evidence to invalidate it only on the ground that the law forbade it to be issued. Stanly v. Biddle, supra; Avery v. Strother, 1 N.C. 558; Stanmire v. Powell, 35 N.C. 312; Strother v. Cathey, 5 N.C. 162; Brown v. Brown, 106 N.C. 451; Harshaw v. Taylor, 48 N.C. 513.

Judge Henderson, in Tate v. Greenlee, 9 N.C. 231, in discussing the question when a grant can be treated as invalid in the trial of actions of ejectment, says: "But, I cannot bring myself to believe, if the cause of its nullity is apparent upon its face, that the Court must shut its eyes against the defect and declare the grant to be valid. But if in such a case parol or other evidence dehors the grant is offered, it should be rejected, not because the grant, if true, is not sufficient to avoid it, but that the party comes unprepared to resist or controvert it." Harris v. Norman, 96 N.C. 59.

While the presumption is, when no defect of authority appears upon the face of the grant, that the executive officers who have the right to issue it have acted within the scope of their general powers, it is otherwise when, by reading it, it is manifest that the entry had become void before its issue. With such apparent defect of power in the maker, it becomes subject to the attack in the trial of issues involving the title to land, just as any deed may be impeached in such trials for want of capacity in the maker or of fraud in the factum, notwithstanding the fact that the grantor is the sovereign State. Jones v. Cohen, 82 N.C. 75; Helms v. Green, 105 N.C. 259; Mobley v. Griffin, 104 N.C. 112. The rule laid down by Pearson, C. J., in Harshaw v. Taylor, 48 N.C. 513, is the familiar principle, that where an officer or tribunal has (680) general jurisdiction the presumption is that they have acted within the purview of their powers, and that their acts were valid. But this presumption will not be allowed to prevail, even in a trial of issues involving only title to land, where it appears that the executive officers have issued a grant upon a lapsed entry, and the presumption of its validity, as against another grant free from such defect, is thereby rebutted. This proposition is not the less true because, in Lovinggood v. Burgess, 44 N.C. 407, it was held that a grant issued by the proper authority, and apparently valid, could not be collaterally attacked by showing dehors the grant some irregularity, fraud or mistake in the preliminary proceedings.

But treating the grant to McFarland as void, the plaintiff, though the burden was upon him in the incipiency of the trial to show title good against the world, is not precluded from taking advantage of the fact that the defendant had proven title out of the State by offering and locating the McLaurin grant. When, in addition, it appeared that Buchanan went into possession of the disputed land under the deed from McKay to him in 1863, and continued in possession, cultivating and clearing land, either in his own right, or as tenant of the plaintiff, or of the intermediate grantees, through whom the latter claimed until the year 1882, it followed, of course, that the possession under color of title, even exclusive of the time elapsing before 1 January, 1870, was sufficient to mature title in the plaintiff, except against persons laboring under some disability that suspended the operation of the statute of limitations as to their rights. It is admitted that the plaintiff's right of action against three of the heirs at law of Fairley is barred, while the statute was running as to the other two long enough to mature title in the plaintiff for their undivided interests. It is not necessary to consider any exception to the testimony, or charge of the court, growing out of the attempt on the part of the defendant to establish title through the void grant to McFarland, as he did not claim to have held possession (681) under the conveyances subsequent to the grant. Considering the McFarland grant as void, we are relieved, for that reason, if not upon other grounds, from discussing or passing upon the exceptions to evidence growing out of the attempt by the defendant to trace his title to that source, as well as those to so much of the charge of the court as related to the same subject.

We come, then, to the question, whether the denial of plaintiff's title and right to possession was, in law, an ouster by the defendant of his cotenant.

It is a well-settled rule of law that a tenant in common cannot maintain an action against his cotenant for the possession, or title and possession, of their undivided land, unless an actual ouster is proved or admitted by the pleadings. Halford v. Tetherow, 47 N. c., 393.

It is conceded that, in order to prove an actual ouster by conduct in pais, it must be shown that the tenant in possession, in refusing the lawful demand of his cotenant, or otherwise, asserted a dominion over the common property irreconcilable with the recognition of the rights of the latter. Hence, it has been held —

1. That the sole reception of the profits of land by one tenant in common is not an ouster, and will raise no presumption of an ouster against his fellows until he has enjoyed the exclusive profits of such rents for twenty years, and the grantee of a tenant in common, though he may hold possession under a deed purporting to convey the whole, stands, in this respect, precisely in the position of his grantor. Linker v. Benson, 67 N.C. 150; Caldwell v. Neeley, 81 N.C. 114; Page v. Branch, 97 N.C. 97.

2. That where a tenant in common of a tract of land demands (682) of his cotenant, who is in possession of it, the whole tract, instead of asking to be let into possession to the extent of his interest, the refusal to comply with such a demand is not an ouster. Meredith v. Andres, 29 N.C. 5.

3. That so long as the relation of tenant in common of land exists between two persons, an action of trespass will not lie in favor of one against the other for merely asserting dominion over the common property. McPherson v. Seguine, 14 N.C. 153.

In stating the foregoing well-established principles, we have given a summary of the points settled by all the authorities cited and relied upon by the defendant to sustain the position that the plaintiff, upon the admitted facts, or upon the proof and the pleadings, cannot recover, because there is no sufficient evidence of an ouster, and that the judge below should have so instructed the jury.

It seems, in this case, that neither party pursued the proper or advisable course in the attempt to assert his rights. The plaintiff, if he did not intend to incur any risks, ought to have made a formal demand to be put into possession as to two undivided fifths of the land with the defendant, and on refusal or failure within a reasonable time on the part of the latter to comply with such demand, he would have had the unquestioned right to maintain an action for possession. When the plaintiff brought suit, claiming the whole, and without giving any previous notice, the defendant could have answered that he was holding possession as a tenant in common for the benefit of both himself and the plaintiff, and had always been ready and willing to let in his cotenant to the extent of his interest, which was two-fifths, and to account for any rents received, if the plaintiff had made demand to be so let in, and for an account of profits. Johnston v. Pate, 83 N.C. 110. Upon the finding or admission that the interests of the parties were as averred in the answer, the defendant would have been entitled to judgment for costs. Sedgwick Wait T. of T. to Land, secs. 283 and 284. But the blunder of the plaintiff was cured when the defendant set up an unqualified (683) denial of the claim of sole seizin on the part of the plaintiff. Allen v. Sallinger, 103 N.C. 17; ib., 105 N.C. 333. When a defendant deliberately waives his right and disregards his opportunity to admit by answer or disclaimer the true interest of the plaintiff, and then attempts to deny the ouster, he cannot complain that he loses the benefit of the relation of cotenant by his denial of its existence. It has been generally, if not universally, held by the courts in this country that a denial of a plaintiff's title or right of entry, or an averment that the defendant held adversely against all persons or the claim of exclusive possession, with a plea of "not guilty," was an admission of actual ouster. Harrison v. Taylor, 33 Mo., 211; Siglan v. Van Riper, 10 Wend. (N. Y.), 414; Miller v. Myers, 46 Cal. 535; Grier v. Tripp, 56 Cal. 209; Noble v. McFarland, 51 Ill. 226; McCallum v. Boswell, 15 U. C. Q. B., 343; Scott v. McLeod, 14 U. C. Q. B., 574. In Classon v. Rankin, 1 Duer. (N. Y.), 357, Chief Justice Oakley laid down the rule that "a denial in the defendant's answer of all right, title and interest in the plaintiff, is an admission that his own possession is adverse, and may, therefore, be treated as a confession of ouster, superseding the necessity of proof upon the trial." It is true that Judge Pearson, in Halford v. Tetherow, 47 N.C. 393, after laying down the rule that "one tenant in common cannot sue his fellow, unless there is an actual ouster either proven or admitted in the pleading," declares that putting in the plea of not guilty in ejectment, without entering into the consent rule, was not an admission of "an actual ouster," and in this respect differed from the Supreme Court of Illinois. But, conceding that the principle stated in that case was correct, this Court, in Allen v. Sallinger, supra, followed the rulings of the Court of New York, that, under the new procedure, where the title is in issue, a general denial of the allegations of the title, and especially of the right to immediate possession, is unquestionably (684) tantamount to the confession of ouster in the fictitious action of ejectment. So that the pleadings in this case place the plaintiff and defendant in precisely the same position as the parties in Halford v. Tetherow, supra, would have occupied towards each other if the fact had been set out in the record that they had entered into the consent rule, which Judge Pearson declared would have been an admission of ouster in the pleadings. It is not reasonable to suppose that the defendant, when it has been settled that the answer is to be construed as an admission of ouster, will any longer insist that it was erroneous to render judgment that the plaintiff be let into possession as to two undivided fifths, or to instruct the jury, that if they found that by continuous adverse possession he had acquired title to that portion of the whole, they would find a wrongful possession on the part of the defendant to the same extent, and assess as the damages two-fifths of the rental value of the whole of the land. If defendant's possession was adverse, the only question that arises out of that admission is, whether there shall be a judgment against him for the sole and exclusive right to the land in dispute, and for the whole of the rents, or for the undivided fractional interest of which the jury find him the rightful owner. One tenant in common of land may sue alone and recover the entire interest in the common property, against another claiming adversely to his cotenants as well as to himself, though he actually prove title to only an undivided interest. This he is allowed to do, in order to protect the rights of his cotenants against trespassers and disseizors. But where it appears from the proof offered to show title, or is admitted, as in this case, that a defendant, who has confessed ouster by denying the plaintiff's title, is in reality a tenant in common with the latter, it is the duty of the court to instruct the jury, by a specific finding, to ascertain and determine the undivided interest of the plaintiff. This course obviates the danger of concluding the defendant by a general finding that the (685) plaintiff is the owner. The principle enunciated in Allen v. Sallinger, 103 N.C. 14, and approved in Lenoir v. Mining Co., 106 N.C. 473, brought into perfect harmony the rulings of this Court in Overcash v. Kitchie, 89 N.C. 384, and in Yancey v. Greenlee, 90 N.C. 317, by showing how one tenant in common might sue a trespasser, who is infringing upon the rights of himself and his cotenants, and recover the entire land, or sue his cotenant, who simply refuses to recognize his right in his answer, and recover such interest as he may establish title for.

Even if we concede the right of the defendant to have the exceptions last filed passed upon, we think that we have disposed of every exception in the discussion of general principles. A large number of exceptions to the evidence grew out of the futile attempt on the part of the defendant to establish a chain of title through the void grant to McFarland, and, as already stated, need not be considered if the grant is void upon its face. There is

No error.

Cited: Bryan v. Hodges, ante, 497; Gilchrist v. Middleton, 108 N.C. 706; Dickens v. Long, 109 N.C. 171; Averitt v. Elliott, ib., 564; Jeter v. Davis, ib., 460; Henning v. Warner, ib., 411; Maxwell v. Barringer, 110 N.C. 83; Herndon v. Ins. Co., ib., 283; Vaughan v. Parker, 112 N.C. 101; Foster v. Hackett, ib., 553; Moody v. Johnson, ib., 811; Boomer v. Gibbs, 114 N.C. 86; Hamilton v. Icard, ib., 539; Waterworks v. Tillinghast, 119 N.C. 348; Bernhardt v. Brown, 122 N.C. 590; Carson v. Carson, ib, 647; Dosh v. Lumber Co., 128 N.C. 89; Winborne v. Lumber Co., 130 N.C. 33; Holly v. Smith, ib., 86; Shelton v. Wilson, 131 N.C. 500; Allred v. Smith, 135 N.C. 450; McAden v. Parker, 140 N.C. 261; Frazier v. Gibson, ib., 275; Berry v. Lumber Co., 141 N.C. 393; Fisher v. Owen, 144 N.C. 652; Dew v. Pyke, 145 N.C. 305; Weaver v. Love, 146 N.C. 417; Simmons v. Box Co., 153 N.C. 261; Brown v. Hutchinson, 155 N.C. 209; Reynolds v. Palmer, 167 N.C. 455; Hilton v. Gordon, 177 N.C. 344.

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