Chatham County NcArchives Court.....Tysor & Tysor, Straughan & Chapin V. 1899
************************************************
Copyright.  All rights reserved.
http://www.usgwarchives.net/copyright.htm
http://www.usgwarchives.net/nc/ncfiles.htm
************************************************

File contributed for use in USGenWeb Archives by:
Connie Ardrey n/a December 10, 2011, 10:21 am

Source: N C Reports
Written: 1899

Straughan & Chapin, Administrators de bonis non of Josiah Tysor v. Missouri 
Tysor, widow, & H. D. Tysor et als, heirs-at-law of Josiah Tysor

(Decided March 21, 1899)

Possession - Title - Joint Occupancy - Tenancy in Common

Joint occupancy by members of the same family does not constitute tenancy in 
common, when the title is in one only. Possession is implied from title in the 
absence of proof to the contrary, and accompanies the title.

Special Proceedings to sell land for assets, transferred from the Clerk of 
Chatham Superior Court and heard before Robinson, J., at February Term, 1898.

The defendants, other than the widow, were the heirs-at-law of Josiah Tysor, 
and in their answer allege that they were tenants in common with the intestate 
of plaintiffs, oppose the sale by the plaintiffs and ask for a sale by a 
commissioner for purpose of partition, and that the share of each be allotted 
in the proceeds of sale.

The widow files no answer - the sale asked for by the plaintiffs being subject 
to her right of dower.

The plaintiffs read in evidence a deed in fee simple for the land described in 
the complaint, to the intestate, Josiah Tysor, from his uncle, Harris Tysor, 
executed on June 18, 1868, and registered July 27, 1881.

It was in evidence that Dennis Tysor, father of the intestate, and of the 
defendants, brother and sisters of the intestate, lived on this place about 
forty years, until his death about 26 years ago, and raised his children 
there. Their mother lived there until her death some 14 years ago; she did not 
claim nor have any dower assigned. The defendant H. D. Tysor left the place 
some few weeks before his father's death. The sisters remained there with 
Josiah Tysor until they married off. Josiah Tysor had lived there all his life 
and died in 1896, leaving a widow, but no children, and she lives there now. 
His brother and sisters, defendants, are his heirs-at-law.

The only paper title read in evidence was the deed of Josiah Tysor from his 
uncle, Harris Tysor.

His Honor charged the jury upon the evidence that Josiah Tysor died sole, 
seized and possessed, and that he was not a tenant in common with his brother 
and sisters, defendants. They excepted. Verdict and judgment for plaintiffs. 
Appeal by defendants.

Mr. T. H. Calvert, for defendants (appellants)
Messrs. H. A. London & Womack & Hayes, for plaintiffs

NC Supreme Court Justice Faircloth, C. J. - This is a petition filed before 
the Clerk by plaintiffs, as administrators, d. b. n., of Josiah Tysor, against 
the defendants, the widow and brother and sisters of said Josiah, for the 
purpose of selling the land for assets. The plaintiffs allege that their 
intestate died in 1896 seized and possessed of the land described in the 
petition. The defendants, except the widow, answer and aver that they were 
tenants in common with said intestate. On the trial of this issue in the 
Superior Court, "Was the plaintiffs' intestate seized and possessed in 
severalty of the lands described in the complaint at the time of his death?" 
his Honor instructed the jury that if they believed the evidence, to answer 
the issue "Yes," which they did, and judgment was entered directing the sale 
proceed and that the commissioners to sell and make their report to the Clerk.

The plaintiffs introduced as evidence a deed, proper in form, to convey title 
to their intestate from his uncle, Harris Tysor, dated and delivered in June, 
1868, and proved that their intestate lived on said land until his death in 
1896, and that no one else cultivated the land or had anything to do with it.

The defendants proved that Dennis Tysor, father of plaintiffs' intestate and 
defendants, formerly lived on this land and that after the death of Dennis his 
widow, daughters and said Josiah lived on the land until the daughters were 
married. This was the evidence. There is no question of ouster or adverse 
possession in the case. The defendants have shown no title from any source, 
but simply occupation with their brother Josiah until they married. They 
asserted no claim until this action was instituted. The plaintiffs show title, 
color of title, and possession in their intestate, and that he alone exercised 
ownership by cultivation, etc., until his death, covering a period of more 
than twenty-six years after the date of his deed.

On the principle that possession is implied from title, in the absence of any 
adverse claim, until the contrary is shown, we hold that the plaintiffs' 
intestate was not only seized but was possessed of the land in dispute and 
covered by plaintiffs' deed, and that no error was committed by the Court 
below.

Affirmed.

Additional Comments:
In the NC Supreme Court February Term 1899

File at: http://files.usgwarchives.net/nc/chatham/court/tysortys2132gwl.txt

This file has been created by a form at http://www.genrecords.org/ncfiles/

File size: 5.3 Kb