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Sheets v. Sheets

Filed: May 18, 1982.

MARGIE E. SHEETS
v.
CLIFFORD B. SHEETS, J. B. SHAVER AND WIFE, DARE M. SHAVER, AND B. A. SHAVER



Appeal by respondents Shaver from Long, Judge. Judgment signed 3 April 1981 in Superior Court, Wilkes County. Heard in the Court of Appeals 26 April 1982.

Martin (Harry C.), Judge. Chief Judge Morris and Judge Clark concur.

Martin

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. Garvin, 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 cotenant 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.*fn1

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 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.

Disposition

Reverse ...


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