
    Elizabeth Gray, Administratrix of John H. Jenkins, and Others, v. Charles Givens, and Others.
    In no case, unless aided by other circumstances, will an ouster of a joint tenant be presumed from lapse of time, under a period of twenty years. [*513]
    Husband decreed to elect to hold Ms deceased wife’s lands as tenant by tbe curtesy, or to take under tbe statute of distributions. [*513]
    In analogy to tbe statute of limitations, the time which the party to be affected was under a disability, is to be deducted from the lapse of time which is to raise a presumption of title against him. [*514]
    Heard at Beaufort, February Term, 1836, before Chancellor Harper, who delivered the following decree:—
    The only object of the bill which it is necessary to consider, is to obtain partition of a tract of land of which Joseph John Jenkins, *de- rj.,,. ceased, is admitted to have been seized at the time of his death. *- The bill also claimed a number of slaves, and this seemed the more material part of it." But this claim was abandoned, being manifestly unfounded, and, as it seemed to me, in some degree vexations. Defendants had purchased the interests claimed by the plaintiffs in 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 consent as respects the plaintiff, Joseph Jenkins, so that there only remain the plaintiffs, Elizabeth Gray, formerly the 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 Jenldns died in the year 1804, leaving his wife, Martha Jenkins, afterwards the wife of the defendant, Charles Givens, entitled to one-third of the tract of land in question, under the statute of distributions, and three children, Joseph, James and John H. Jenkins, fthe latter the husband and father of the plaintiffs,) 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 1832. Defendant, Givens, has remained in ‘possession ever since. Plaintiffs claim, in the right of John H. Jenkins, the share to which he was entitled by inheritance from his father, one-third of the share of James Jenkins ; and, if the land be subject to partition, the infant plaintiff is entitled to one-third of two-thirds of his grandmother’s interest, she having left a husband and two other children. Plaintiffs pray that defendant, Givens, may elect either to hold his deceased wife’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 relies on the length of his possession to maintain his title to the land. It is agreed that John H. Jenkins, plaintiffs’ intestate, came of age on the 3d February, 1818, and that from that time to the filing of the bill (Sept. 1834), more than sixteen years had elapsed, during which defendant was in exclusive possession. There is no doubt but that the possession of one tenant in common is the possession of the other, and that his possession *will not be adverse, so as to admit the opera- -* tion of the statute of limitations, without an ouster of the co-tenant. But it is not necessary that there should be an actual turning out to constitute an ouster. Whatever is sufficient to give the co-tenant notice, that the party in possession claims exclusively for himself and in his own right, will, I think, be a sufficient ouster. And if there were circumstances to show that plaintiff’s intestate had such notice, I should think defendant’s title matured by the statute. But there are no circumstances beyond the naked fact of possession. No doubt an ouster may be presumed, from the mere fact of a very long exclusive possession, as in the case of Fisher v. Prosser, Oowp. 211. Where one tenant in common had been in possession exclusively, receiving the rents and profits for about forty years (double the time required for the English statute to run), Lord Mansfield 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 find 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 be ? 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 Biddlehoover v. Kinnard, 1 Hill Ch. Bep. 318, “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 anything else that is necessary to quiet the title to property.” See also Hutchinson v. No-land, 1 Hill, 222. But in no case, unless aided by circumstances, have such presumptions been made on a possession of less than twenty years. I must, therefore, declare the plaintiffs entitled to partition of the land in question, but upon all the circumstances of the case, I 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 commissionefs allot to the plaintiffs, Mrs. Elizabeth Gray and Benjamin P. Jenkins, such portion of the said land as their intestate, John H. Jenkins, was entitled to by descent from his father, Joseph J. Jenkins, and his brother, James Jenkins ; that the defendant, Charles Givens, *elect to hold as tenant by the -I curtesy, such portion of the said land as his deceased wife was entitled to, or that the same be divided in pursuance of the statute of distributions; and that if he shall elect to take under the statute, the commissioners allot to the plaintiff, Benj. P. Jenkins, one-third of two-thirds of the said portion of land. Plaintiffs to pay costs.
    The defendant appealed on the grounds:—
    
      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 decree is, in other respects, contrary to equity and the evidence.
    
      A. M. Smith, for appellant.
    
      Treville, contra.
   Chancellor Harper

delivered the opinion of the Court.

The Court is of opinion that the decree in this ease 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 co-tenant. It is urged that the possession of the defendant, during the minority of John H. Jenkins, ought 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 it has not before been questioned, but that the time during which the party to be affected has been under a disability, must be deducted in computing the lapse of time, in analogy to the statute of limitations. Such was the case of Riddlehoover v. Kinnard (1 Hill’s Ch. Rep. 375), 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 v. Stuart and Means, 2 Hill, 328. The decisions have been numerous and the practice habitual, and I am not aware of any doctrine or decision to the contrary. If it were otherwise, the consequence might follow which was suggested by the plaintiff’s counsel. If the possession were taken in the 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, L 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.

Chancellors De Saussure, Johnson and Johnston, concurred.  