
    Elizabeth Gray, Administratrix of John H. Jenkins, and others, vs. Charles Givens, et. al.
    
    Heard before Chancellor HaREEb, Beaufort District, February Term, ISS©.
    The only object of the bill which it is necessary to Consider, is tor obtain partition of a tract of land of which Joseph John Jenkins* deceased is admitted to have been seized, at the time of his death. The bill also claimed a number of slaves, and this seemed the wore' material part of it. But this claim was abandoned, being manifestly unfounded, and, as it seemed to me, in some degree vexatious. De-fendaats had purchased the interests claimed by the complainants ill the slaves, for what appeared to be an adequate and full consideration, and received a release; though this was charged by the bill, to' have been obtained fraudulently and for a grossly inadequate' consideration. The bill was dismissed by the consent as respects the complainant Joseph Jenkins, so that there only remain the complainants Elizabeth Gray, formerly (he wife of John H. Jenkins, and Benjamin P. Jenkins, her son by the said John H. Jenkins, and the only child of that marriage.
    The said Joseph John Jenkins, died m the year 1804, leaving his wife Martha Jenkins, afterwards the wife of the defendant, Charles Givens, entitled to one third of the tract of laud in question, under the statute of distributions, and three children Joseph,. James, and John H. Jenkins, the latter husband and father of the complainants, each entitled to one third of two thirds. James is since dead, intestate and without issue. Mrs. Martha Jenkins-went into possession of the land, and continued in possession till her marriage with the defendant, Charles Givens, and she and her husband remained in possession, having the exclusive use and enjoyment until her death in 1882. Defendant Givens, has remained in possession ever since. Complainants claim in the right of John Jenkins, the share to which he was entitled by inheritance from his fathei, one third oí the share of James Jenkins, and if the land be subject to partition, the infant complainant is entitled to one third of two thirds of his grand-mother’s interest, she having left a husband and two other children.
    Complainants pray, that defendant Givens, may elect either to hold his- deceased wile’s share of the land for life, as tenant by the curtesy, or that partition may be made of it, according to the act of distributions. Defendant relics oi> the length of his possession to maintain his title to the land. It is agreed that John Jenkins, complainant’s intestate, came- of ape on the 3d February, 1818, and that from that time to the filing of the bill, (Beat. 1834,} more than sixteen years had elapsed, during which defendant was in exclusive*-posscssion. There is no donbt but that the possession oí one tenant in common is the possession of the other, and that bis possession will not he adverse, so as to admit the operation of the statute-of limitations without an ouster oi the co-tenant. But it is not necessary that there should be an actual turning out to constitute an oustor. Whatever is sufficient to give the co-tenant notice, ihatthe--parly in possession chums exclusively for himself and in his own Tight, will, I think, he a sufficient ouster. And if there were circumstances,to .shew that complniuani’a intestate had ¡-uch notice, I should thi- k defendant’s tide matured by the statute. But there are no circumstances beyond the mere naked fact of possession. No doubt, an ouster m ty be presumed, from the mere fact of a veiy long exclusive possession, as in tiie case of Fisher vs. Rupee, Cowp. 217. Whete one tenant in common had been in possession, exclusively receiving the rents and profits, ter about forty years, (doutile the time required for the English statute to run,) Lord Ma> afield instructed the jury, that from the length of possession they might presume an ouster. It, may be, that if this case were before a jury, it might be within their discretion to fi-.d an ouster. But, I cannot venture to exercise an arbitrary discretion. If I could, I should incline to exercise it in favor of the defendant. I must, adopt some rule, and what shall it bel Twelve, sixteen, or eighteen years. I can think of no other, than that bar which is made to quiet almost every other claim and give efficacy to long possession — the lapse of twenty years. As is said in Riddlehoove vs. Kinnard, 1 Hill Oh. Rep. 378. “ The lapse of twenty years is sufficient to raise the presumption of a grant from the State, of the satisfaction of a bond, mortgage, or judgment, of the grant of a franchise, or the payment of a legacy, or almost any thing eke that is necessary to quiet the title to property.” See also Hutchinson vs. Noland, 1 Hill 222. But in no case, unless aided by circumstances, have such presumptions been made on a possession of less than twenty years. 1 must, therefore, declare the complainants entitled to partition of the land in question, but upon all the circumstances of the case, 1 think they must pay the costs.
    It is, therefore, ordered and decreed, that a writ of partition issue, to divide the land in question, and that the commissioners allot to the complainants, Mrs. Elizabeth Gray and Benjamin P. Jenkins, such portion of the said land as their intestate John Jenkins, was entitled to by descent from his father, Joseph John Jenkins,,and his brother James Jenkins; that the defendant, Charles Givens, elect to hold as tenant by the ctirtesy, such portion of the said land as his dee-'i; )C.t wife was entitled to or that the seme be divided in pur-suauce of the statute of distributions; and that if he shall elect to take under the statute, the commissioners allot to the complainant, Benj. P. Jenkins, one third of two thirds of the said portion of land. Complainants to pay costs.
    WILLIAM HARPER.
    
      Grounds of Appeal.
    
    1. Because the Chancellor decides that near seventeen years peaceable possession by the defendant, Charles Givens, of the tract of land, did not, under the circumstances, give him a sufficient title.
    2. The deerae is in other respects, contrary to equity aud the evidence.-
    A. M. SMITH, Defendant’s Solicitor.
    
   Chancellor Habpeb

delivered the opinion of the court.

The court is of opinion that the decree in this case must be affirmed. There is no difference of opinion, as to the length of time, which is necessary to raise the presumption of an ouster by one tenant in common of his joint tenant. It is urged that the possession of the defendant, during the minority of John H. Jerkies, ought either to be taken into account in computing the lapse of time, or that it is a circumstance to strengthen the presumption arising from the sixteen years possession, after he came of age. I think jt has not before been questioned, but. that the time during which the party to be affected has been under a disability, must be de» ducted m computing the lapse of time, in analogy to the statute of limitations. Such was the case of Riddlehoove vs. Kinnard, relied upon on the part of defendants. The rights of the parties, who were infants when possession was taken of the property, were saved by the decree. Such was the case of Henry vs. Stuart and Means, 2 Hill. 323. The decisions have been numerous and th© practice hamtual, and I am not aware of any doctrine or decision to the contrary. If it were otherwise, the consequence might follow which was suggested oy the complainant’s counsel. If the posses, sion were taken m ttie very early infancy of the other party, the title might be matured before his arriving at age, and before the statute of limitations had begun to run. So in the case of successive minorities. The evils complained of, or apprehended from this source, in keeping titles indefinitely suspended, would be effectually remedied by such a construction. But this time might as well be taken directly into account, as to serve for -strengthening the presumption arising from a subsequent possession of less than twenty years. The decree is affirmed.

A. M. Smith, for motion.

De Teeviele, contra.

Filed 15th February, 1837.

WILLIAM HARPER,

We concur,

HENRY W. DESAUSSURE,

J. JOHNSTON,

DAVID JOHNSON-  