Sheets v. Sheets

291 S.E.2d 300 (1982)

Margie E. SHEETS v. Clifford B. SHEETS, J. B. Shaver and wife, Dare M. Shaver, and B. A. Shaver.

No. 8123SC934.

Court of Appeals of North Carolina.

May 18, 1982.

*301 W. G. Mitchell, North Wilkesboro, for respondents Shaver.

George G. Cunningham, Wilkesboro, for respondent Sheets.

HARRY C. MARTIN, Judge.

Our courts have, on numerous occasions, applied the law of constructive ouster. See Dobbins v. Dobbins, 141 N.C. 210, 53 S.E. 870 (1906); Thomas v. Garvan, 15 N.C. 223 (1833); Collier v. Welker, 19 N.C.App. 617, 199 S.E.2d 691 (1973). The rule has been criticized as penalizing a co-tenant out of possession for "sleeping on his rights," when under the traditional rules of adverse possession, cotenants share a special fiduciary relationship virtually precluding adverse possession by any other means.[1]

On the facts before us, however, we need not consider the potential problems and inconsistencies raised by our court-adopted rule of constructive ouster. Nor is it necessary to discuss appellants' evidentiary questions. This case falls squarely under the *302 rule enunciated in Mott v. Land Co., 146 N.C. 525, 60 S.E. 423 (1908), as applied in Hi-Fort, Inc. v. Burnette, 42 N.C.App. 428, 257 S.E.2d 85 (1979).

Hi-Fort states that "where the party claiming adversely was found to have recognized the cotenancy by, in previous years, having bought ... shares of the property from the heirs of the party through whom all were claiming title," the presumption of ouster will not arise. 42 N.C.App. at 435, 257 S.E.2d at 90. The record here discloses that in 1971 Annie Mae Reeves recognized the cotenancy when she bought a one-fifth share in the property from Myrtle Reeves.

Reversed.

MORRIS, C. J., and CLARK, J., concur.

[1] See Real PropertyAdverse Possession Between Tenants in Common and the Rule of Presumptive Ouster, 10 Wake Forest L.Rev. 300 (1974). A cotenant in possession is encouraged to deal with his fellow tenants in a less than open and honest manner. Knowing that the tenant out of possession has been lulled into believing that actual ouster is necessary, the tenant in possession need only fail to account for rents and profits and avoid open, notorious and hostile acts calculated to put his fellow tenants on notice. After twenty years of sole possession, he may claim the land as his own. The policy behind the rule, as originally stated by Lord Mansfield in Fishar v. Prosser, 98 Eng.Rep. 1052 (K.B. 1774), seems somewhat illogical. If undisturbed and quiet possession for twenty years is sufficient to presume actual ouster, the rule requiring actual ouster plus twenty years of open, continuous, exclusive and notorious possession has no meaning.