
    John Allen vs. T. Hall, and others.
    The possession of one tenant in common is the possession of both; and although the unity of possession be destroyed by an actual ouster, that ouster rpust be either positively proved, or such circumstances must be proved as would support the presumption of an ouster.
    Arid the declaration of a witness (whose credit was extremely doubt» ful) that the possession of the defendant had been adverse, but not stating why he thought it adverse, nor when it became so, was held; not sufficient evidence of an ouster.
    ThIS was a case in partition. — The parties were tenants in common. The defendants had been in possession for six or seven years before this action was commenced. No rents or profits had been demanded during that period.’ — . One of the witnesses (whose credit was extremely doubtful), stated that the possession of defendants had been adverse; but why he thought it adverse, he did ri'pt state, nor when it became so.
    • The jury found for defendants.
    
      A motion was now submitted for a new trial, on the ground that the evidence of an adverse possession was not sufficient to support the- verdict»
    
      Pearson and Clendenin, for the motion.
    
      Williams and -M' Cord, contra. • -
   Mr. Justice Huger

delivered the opinion of the Court.

The possession of one tenant in common is the possession of both ; and although the unity of possession may be destroyed' by an actual ouster, that ouster must be either positively proved1, dr such' circumstances must be proved iri'would support the presumption of an ouster.

' In Taylor and Prosser, (1 Cowper, 219,) 44 years possession,1 after a particular estáte ended, where more than quadruple the 'time allowed' by the statute of limitations for bringing an account had ¿lapsed, were thought'sufficienfc to'authorize the presumption of an ouster, So'when the tenant in possession refused admission tó his companion, saying, if you come in it must be by law, has been held td> be sufficient proof of adverse possession.' (See 1 Mass. .Rep, 333. J But it has been repeatedly ruled that the bare perception of profits ohly was not sufficient to authorize the presumption of an oustér. (2 Salkeld, 423. 5 Bur. 2604. and 2 Blacks. Rep. 690.)

' ■ There is' nothing in this cáse to authorize the presumption of árí ouster but the bayfe perception of profits, unless it be.the 'vague declaration of an uncertain witness, to which I can attach ho'consequence. '■

The motion' therefore must prevail.

Justices Richardson and Gantt,'concurred.

Justice's Johnson- and Colcock, dissented.  