
    JOHN HOLDFAST, ON DEMISE OF JOHN A. SHAW & AL. vs. WILLIAM B. SHEPARD.
    A plaintiff may recover in ejectment upon the demise of only one of several tenants in common, to the extent of his interest; and there may be a general verdict and judgment that he recover his term, as under the writ of possession the lessor of the plaintiff proceeds at his peril.
    Where, in an action of ejectment, the defendant relied upon the Statute of Limitations, and the evidence was, that the defendant ánd A., under whom he claimed, had had seven years actual possession, except for the space of four or five months, an interval that elapsed between the time when a tenant of A. left the premises, and the time when the defendant entered under his purchase. Held by the Court, that the interval between these two occupations was too large to found a presumption on of a continued possession, in the absence of any intermediate act of ownership by A. or any one under him.
    The eases of Bronson v. Paynter, 4 Dev. and Bat. 393, Godfrey v. Cartwright, 4 Dev. 487, and Blair v. Miller, 2 Dev. 407, cited and approved.
    Appeal from the Superior Court of Law of Pasquotank County, at the Spring Term, 1846, his Honor Judge Bailey presiding.
    This was an action of Ejectment for a house and lot in the town of Elizabeth City. One John King was seized of the premises in fee, and, on the 4th day of September 1834, they were sold, under a judgment and execution against him, by the sheriff of Pasquotank, and conveyed to John C. Ehringhaus. On the same day, Mr. Ehringkaus conveyed the premises in fee to Jeremiah M. King, in trust for Margaret King, wife of the said John King, to her sole and separate use for life, and not subject to any control of her said husband; and upon a further trust, after her death, for such child or children as she might have by her said husband, and as might be living at her death, if any; and if there should be no such children or child, then in trust for certain other persons. After this conveyance, John King and his family continued to reside on the premises ; and other creditors of John King obtained judgments against him and had the same house and lot again sold upon their writs of 
      fieri facias, and Charles R. Kinney became the purchaser and took a deed from the sheriff. He thereupon brought an ejectment against John King and Jeremiah M. King, and recovered the premises in April 1837. Kinney sued out a writ of possession, but did not have it executed ; and a witness for the defendant proved, that in October 1837, he heard Kinney say to John King, (who occupied the house,) “ You may stay hero till I see you again and the said King did remain in the house the residue of that year. Another witness proved, that, in the latter part of 1837, Kinney directed the witness, if he knew of any person who wanted a house, and would make a good tenant, to lease the premises for him to such person. The defendant further proved by one Eslick, that he entered into the premises on the 10th of January 1838, and occupied the house as the tenant of Kinney, until the following June or July, when he left the premises and surrendered them to Kinney. On the 10th of November 1838, the present defendant contracted with Kinney for the purchase of the premises, and shortly thereafter took a conveyance and possession of the same, and has since occupied them to the present time.
    In 1841, Jeremiah M. King died, having made a will and thereby devised “all his real and personal estate to his wife Keziah,” and made her executrix. He died without issue, but left five or six brothers and sisters, who were his heirs at law. John King also died before the ' suit was instituted, leaving his wife Margaret surviving. The present action was commenced on the 23d of October, 1845, and the declaration contains three counts; the first on the demise of two of the sisters of Jeremiah M. King ; the second on the demise of his widow and devi-see, Keziah, and the third on the demise of Margaret, the widow of John King. On the trial it was insisted on the part of the defendant, that the plaintiff was not entitled to a verdict on the first count, because it was on the demise of two only of the sisters of Jeremiah M. King,. •whereas it should have been on that of all his heirs at law. But the Court held, that, supposing the legal title to have been in J. M. King, and have descended from him to his heirs, the jury might find for the plaintiff on that count, notwithstanding it was upon the demise of only a part of the heirs at law. It was insisted further, on the j>art of the defendant, that the evidence established, that he and those under whom he claimed had been in the continued and peaceable adverse possession of the premises, for seven years and more before this suit was commenced ; and therefore, that the rights of entry of the plaintiff’s lessors were barred, and he moved the Court so to instruct the jmy. But the Court refused to do so.
    The counsel for the defendant then further moved the Court to instruct the jury, that there was evidence that the said Kinney had not abandoned the premises, but intended to retain and occupy them: which instruction the Court also refused to give.
    The counsel for the defendant further requested the Court to instruct the jury, that, if the possession of Kinney during the year 1838 was consistent with the usage of landlords in the same community — renting out the house, when lie had an opportunity or had an application for it, and closing it up for short intervals, only because he could not rent it to a suitable tenant, that would be sufficient. But the Court declined also to give that instruction : and instructed the jury, that, in order to bar the plaintiff, it was necessary that the defendant should shew a continued possession in himself and Kinney, under whom he claimed, for seven years át least. The jury found a verdict for the plaintiff, and from the judgment the defendant appealed.
    
      A. Moore, for the plaintiff.
    
      J. 11. Bryan, for the defendant.
   Rums:, C. J.

On the first question the case of Bronson v. Payntor, 4 Dev. and Bat. 393, is in point. Jt tvas there determined, that a plaintiff might recover upon the demise of the tenants in common, to the extent of their right, though a third person did not join, and also in that case and in Godfrey v. Cartwright, 4 Dev. 487, that there might be a general verdict and judgment that the plaintiff recover his term, since under the writ of possession the lessors of the plaintiff proceed at their peril. The defence founded on the statute of limitations, we think, must also fail. The possession began “ shortly after” the 10th of November, 1838 : so that it wanted a month or thereabout of seven years, when this suit was commenced, which was on the 23d of October, 1845. But the defendant insists that Kinney had been in possession, by his tenants or by himself, from October 1837, or, at all events, from the 1st of January, 1838, which would exceed seven years. Eslick certainly held under Kinney from January to June of that year. But the question remains, whether, after Eslick went away, there was any occupation or possession under Kinney’s title, until the defendant entered.

A defence of this nature admits the better right to have been in one or more of the lessors of the plaintiff. The onus is on the defendant to shew a possession, adverse to the other claimant, and continued for the full term of seven years; and this ought to be established by evidence, that does not leave the point of his possession doubtful— since the original right ought to prevail, unless the bar plainly appear. Now, for a period of four and a half or five months — from June until, at the earliest, about the middle of November — there was no actual occupation of the premises ; and the point is, ■whether it can be said, that the possession then was legally in Kinney. The general rule is, that where there is no actual possession by some person, it is constructively in the owner. Therefore the possession of Kinney, if existing, must, in order to answer the defendant’s purpose, be deemed in a legal sense, the actual possession. And here the remark occurs, that the whole question turns’on the first'instruction prayed, and that the two others, as expressed, and as far as they differ from the two first, ought, without doubt, to have been rejected. For an intention to occupy cannot amount to occupation, unless denoted by actual occupation, prior and subsequent, so near together as to shew an uninterrupted exercise of ownership, or continued assertion of right, and liability at all times to the possesory action of the owner. And secondly, as there was no evidence of “ the usage cf landlords” in the town of Elizabeth in particular, or of Kinney’s motives for leasing or selling the premises before November, or of his closing the house for short intervals, the defendant could not demand an opinion cf the Court upon the hypothesis of a usage, or that Kinney closed the house, and much less that he did so for want of a suitable tenant. The merits of the controversy then depend on the point first raised ; which is, whether the defendant has shown, that, from June until some time in November 1888, the possession is to be taken, in point of law, to have been in Kinney. We cannot undertake to say, what interval between two actual personal occupations, under the same claim of title, will interrupt the possession in a legal sense. A day, or week, or month, or even a longer time between the outgoing of one tenant and the incoming of another, may not of itself, perhaps, make a chasm in the possession; especially, if in the mean while, there be any use of the premises, or liabilities incurred on account of the premises — as by listing by one, as owner or occupant, for taxes, or by putting or leaving property there, though of little value, as in the case given in the books, of beer in the cellar or hay in the stable ; or by locking up the house and keeping the key. But there is in this case, nothing of that kind; nothing except that in June a tenant of Kinney left the premises, and four and a half or five months afterwards, the defendant purchased from Kinney and went into pos-session. It is to be taken, that Eslick leased only for the time lie occupied, since nothing more appears; and therefore, that Kinney might have immediately entered, or leased to another person. Eslick says, indeed, that he surrendered the possession to Kinney, and it is insisted that Kinney is to be deemed thenceforward in possession. But that is not a just inference. It does not follow, because Eslick’s lease and possession were determined, that Kinney then took, much less that he continued in possession for the next five months. It is argued, that the case is within the reason of the rule. Blair v. Miller, 2 Dev. 407, that it is sufficient, if an owner has a field in crop or under fence, as a part of his plantation, according to the general course of agriculture, or has tenants to make a crop on his land every year, though the one does not enter the day the other goes out. But the usual enjoyment of land employed in agriculture is to make an annual crop ; which is not, ordinarily, the business of the whole year. But houses are not thus occupied for a part of the year, by those who lease them for the whole year. On the contrary, the rent is usually according to the period of occupation, and owners commonly go in themselves or put in another tenant, when a prior lease expires ; so as to get the full enjoyment of their property. As there can be no presumption of possession under the lease to Eslick after June, it becomes necessary, in order to continue the possession afterwards, that something should have been done by Kinney, denoting that he was acting as owner and as owner in the enjoyment of the premises. It is said, that some time must be allowed for getting a suitable tenant. Admitting that there may be some interval between the expiration of one lease and the granting of another, during which it may not bo necessary to shew any actual exercise of dominion by the landlord, yet it would be going much beyond the necessity for such indulgence, if allowable to all, to admit of so long an interval as occurred here. If a landlord be entitled to five months to find another tenant t>r a purchaser, how can we say that he shall not have twelve or double that number if needed, to get a person that' he deems suitable. It would really revérse the rule of law; for, instead of holding that the possession is according to the title, when there is no actual occupant, it would establish a rule, that when one person has once been in actual possession, he is to be presumed to continue so indefinitely, contrary to the fact, unless the owner enter and actually occupy. Without, then, going beyond the case before us, we hold it safe to say, that the hiatus between the two occupations of Eslick and the defendant, is too large to found a presumption on of a continued possession, in the absence of any intermediate- act of ownership by Kinney or any one under him.

Per Cuiuam. Judgment affirmed.  