This rule extends to purchaser of the interest of a tenant in common at execution sale, and to his vendees. ( Day v. Howard, 73 N.C. 1, explained and approved; Cloud v. Webb, 3 Dev., 317; Caldwell v. Neeley, 81 N.C. 114; Covington v. Stewart, 77 N.C. 148; Neeley v. Neeley, 79 N.C. 478, cited and approved). This was a special proceeding for partition of land commenced before the clerk of Wayne Superior Court, and the defendants having pleaded they were sole seized of the lands in question, and issue having been joined thereon, said issue was transferred for trial by jury in term to the Superior Court of said county; and the said issue having come on for trial at January Term, 1885, of said court, before His Honor, Judge Gudger: It was admitted that one Josiah Ward was, in his lifetime, seized in fee of said land, and that the plaintiffs and one W. W. Ward were the only heirs-at-law of the said Josiah Ward, who died prior to the year 1865.

4. One tenant in common cannot sue another for taking possession of property to which each has the same and an equal right, when there has been no ouster. (Woodburne v. Gorrel, 66 N.C. 82; Wright v. Player, 72 N.C. 94; Paul v. Carpenter, 70 N.C. 502; Vick v. Pope, 81 N.C. 22; Houston v. Brown, 7 Jones, 161; Wilson v. Arentz, 70 N.C. 670; Jones v. Carter, 73 N.C. 148; Neely v. Neely, 79 N.C. 478, cited, commented on and approved.) CIVIL ACTION tried at Fall Term, 1878, of CRAVEN Superior Court, before Seymour, J.

To the same effect are these cases: Hampton v. Wheeler, 99 N.C. 222, 6 S.E. 236; Ferguson v. Wright, 113 N.C. 537, 18 S.E. 691; Shannon v. Lamb, 126 N.C. 38, 35 S.E. 232; Tharpe v. Holcomb, 126 N.C. 365, 35 S.E. 608; Hardee v. Weathington, 130 N.C. 91, 40 S.E. 855. And it is a well settled and long established principle of law in this State that the possession of one tenant in common is in law the possession of all his co-tenants unless and until there has been an actual ouster or a sole adverse possession of twenty years, receiving the rents and profits and claiming the land as his own from which actual ouster would be presumed. See Ward v. Farmer, 92 N.C. 93. Among other pertinent cases are these: Cloud v. Webb, 14 N.C. 317; S. c., 15 N.C. 289; Black v. Lindsay, 44 N.C. 467; Linker v. Benson, 67 N.C. 150; Covington v. Stewart, 77 N.C. 148; Neely v. Neely, 79 N.C. 478; Caldwell v. Neely, 81 N.C. 114; Gaylord v. Respass, supra; Hicks v. Bullock, 96 N.C. 164, 1 S.E. 629; Page v. Branch, supra; Breeden v. McLaurin, 98 N.C. 307, 4 S.E. 136; Gilchrist v. Middleton, supra; Roscoe v. Lumber Co., supra; Hardee v. Weathington, supra; Woodlief v. Woodlief, 136 N.C. 133, 48 S.E. 583; Bullin v. Hancock, 138 N.C. 198, 50 S.E. 621; Rhea v. Craig, 141 N.C. 602, 54 S.E. 408; Boggan v. Somers, 152 N.C. 390, 67 S.E. 965; McKeel v. Holloman, 163 N.C. 132, 79 S.E. 445; Lee v. Parker, 171 N.C. 144, 88 S.E. 217; Lester v. Harward, 173 N.C. 83, 91 S.E. 698; Crews v. Crews, 192 N.C. 679, 135 S.E. 784; Stephens v. Clark, 211 N.C. 84, 189 S.E. 191; Cox v. Wright, 218 N.C. 342, 11 S.E.2d 158. Upon the facts found we do not have before us a case of actual ouster, and adverse possession under color of title within the meaning of the statute, G.S., 1-38, formerly C. S., 428. It is true defendants contend that James T. Woolard has had adverse possession of the land under color

' In Covington v. Stewart, 77 N.C. 148, it is held that the possession of one tenant in common is the possession of all, but if one have the sole possession for twenty years without acknowledgment on his part of title in his cotenants, and without any demand or claim on the part of such cotenants to rents, profits or possession, he begin under no disability during the time, the law in such cases raises a presumption that such sole possession is rightful and will protect it.' It is also held in that case that under our statute of limitations such sole possession vests title. Neely v. Neely, 79 N.C. 478; Caldwell v. Neely, 81 N.C. 114; Ward v. Farmer, 92 N.C. 93; Hicks v. Bullock, 96 N.C. 164." To the same effect is Page v. Branch, 97 N.C. 97.

We do not see why our case is not governed by the general principle long established in this Court, that where there has been an exclusive possession by one tenant of the common property for twenty years without any demand or claim for an account of rents, issues or profits from his cotenant, and without any acknowledgment on his part of title in said cotenant, the law in such a case raises a presumption that the sole possession was rightful and will protect it, and where the tenant out of possession brings ejectment, his entry will be considered as tolled and his right of action will be barred. Cloud v. Webb, 15 N.C. 290; Black v. Lindsay, 44 N.C. 467; Thomas v. Garvan, 15 N.C. 223; Covington v. Stewart, 77 N.C. 148; Neely v. Neely, 79 N.C. 478; Whitaker v. Jenkins, 138 N.C. 476; Bullin v. Hancock, 138 N.C. 198, and Dobbins v. Dobbins, ante, 210, where the cases are collected and reviewed. If the parol partition left the tenants in common with undivided interests in the shares allotted to each of them, still it must be conceded that if they severally took possession, each of his or her part, and have continued in the sole and exclusive possession ever since the allotment was made without the making of any claim or demand for rents, issues, or profits by any of them upon the others, but recognizing each other's possession to be of right and hostile, the law will presume an actual ouster and a supervening adverse possession as much so as in the other cases where the possession was of the whole instead, as here, (612) of a part only. When there is the same reason there must be the same law. Indeed, in this case, the principle of the authorities cited should more strongly apply, for when there is possession of the whole it is

The sole silent occupation by one of the entire property, without an account to or claim by the others, is not in law an ouster, nor furnishes evidence from which an ouster can be inferred, unless it has been continued for that length of time, which furnishes a legal presumption of the facts necessary to uphold an exclusive possession." This case was in turn followed by Linker v. Benson, 67 N.C. 150; Covington v. Stewart, 77 N.C. 148; Neely v. Neely, 79 N.C. 478; Caldwell v. Neely, 81 N.C. 114; Page v. Branch, 97 N.C. 97; Bullin v. Hancock, 138 N.C. 198; Whitaker v. Jenkins, 138 (218) N.C. 476. The same doctrine was applied in Fisher v. Prosser, 1 Cowper, 217, decided by the King's Bench, in which Lord Mansfield presided as Chief Justice. It was said by Justice Aston in that case: "Now, in this case, there has been a sole and quiet possession for 40 years, by one tenant in common only, without any demand or claim for an account by the other, and without any payment to him during that time.

Though some doubt had been expressed in the earlier cases, it was held in Cloud v. Webb, 14 N.C. 317, that a possession of seven years by a tenant in common, even under color of title, was not sufficient to bar his cotenant, but that by long-continued possession (in that case thirty-six years) an ouster might be presumed, and that the statute would run upon a presumed ouster, although it was admitted that no actual ouster had ever taken place. The principle settled by that case has been followed ever since, and the time for the presumption of an ouster from adverse (202) possession in such a case fixed at twenty years, which is the time prescribed by the statute in like cases for barring right. Linger v. Benson, 67 N.C. 150; Covington v. Stewart, 77 N.C. 148; Neely v. Neely, 79 N.C. 478. In Caldwell v. Neely, 81 N.C. 114, it was held following Cloud v. Webb, that the ouster of one tenant in common of land by a cotenant will not be presumed from an exclusive use of the common property and the appropriation of its profits to his own use for a less period than twenty years, and the result is not changed when one enters to whom a tenant in common has by deed attempted to convey the entire tract.

" In Covington v. Stewart, 77 N.C. 148, it is held that the possession of one tenant in common is the possession of all, but if one have the sole possession for twenty years without acknowledgment on his part of title in his co-tenant, and without any demand or claim on the part of such co-tenant to rents, profits or possession, he being under no disability during the time, the law in such cases raises a presumption that such sole possession is rightful and will protect it. It is also held in that case that under our statute of limitations such sole possession vests title. Neely v. Neely, 79 N.C. 478; Caldwell v. Neely, 81 N.C. 114; Ward v. Farmer, 92, N.C. 93; Hicks v. Bullock, 96 N.C. 164. The possession of Polly Merritt (138) and Sallie Woodlief, being consistent with the rights of their co-tenants, we can see no good reason why they could not buy the interest of their co-tenant, Rhoda Fuller. The doctrine of election does not apply to the facts in this case.

It only went to prove entry by the defendant on the land (section 5 of the complaint, section 8 of the answer, put in evidence by the plaintiff). The possession of one tenant in common is in law the possession of all. Covington v. Stuart, 77 N.C. 150; Neely v. Neely, 79 N.C. 478. And the rule is the same when one enters to whom a tenant in common has by deed attempted to convey the whole land.

It is equally well settled that the ouster of one tenant in common of land by a co-tenant will not be presumed from an (117) exclusive use of the common property and appropriation of its profits to himself for a less period than twenty years. Cloud v. Webb, 14 N.C. 317, reaffirmed on second appeal, 15 N.C. 290; Covington v. Stewart, 77 N.C. 148; Neely v. Neely, 79 N.C. 478. The result is not changed when one enters to whom a tenant in common has by deed attempted to convey the entire tract.