#### DOE *on dem. of*DANIEL HALFORD AND ELIZABETH HIS WIFE *vs.*JOSHUA TETHEROW.

(The first point in this-ease is the construction of a will arising upon its -peculiar phraseology.)

One tenant in common cannot sue his fellow, unless there is an actual ouster either proved or admitted by the pleading.

Coverture is not a saving against the operation of the Statute of limitations, unless the wife *must*be joined with the husband in order to sustain the action Where he *may sue alone,*or where he *may*join the wife with him at his election, the Statute bars.

Where the eviction takes place *during the coverture,*the husband may sue alone, or may join his wife with him at his election; in such a case, therefore, ho is barred by the Statute.

, EjegtheNt, tried before Bailey, Judge, at a Special Term of Buncombe Superior Court, July, 1855.

*394The land in question, had been granted to John Lakey, who died in 1835, seized of the same in fee, leaving the plaintiff Elizabeth, Hiram Lakey, and Anne Lakey his only children and his heirs at law. To avoid the application of the Statute of limitations the plaintiffs piit in the will of John Lakey, and it was insisted by them, that the land in question was devised to Jincey Lakey, his widow, during her life or widowhood ; and that she having died without marrying, only about two years before the bringing of this suit, they were within time. The will of John Lakey is as-follows: “In the next place, I allow my just debts to be paid- out of my estate; then in the next place, I allow the plantation where I now live on, and all my household furniture, and stock of cattle and horses and hogs to the use and benefit of my wife Jincey, during her life, or as long as she remains my widow; and if she should marry, I allow all my property to be sold, and my wife to have the third of all the perishable property. Also, I allow my land to be sold and divided as follows: if John Alloway -stays and works with Ijis grandmother, I allow him to have three months schooling and fifty dollars out of my estate when sold : next, I allow when my propertjq that is, the balance after the sale, to be equally divided between my son* Hiram Lakey, Anne Lakey and Elizabeth Halford: next, the place of mine that Jesse Watkins now lives on, after his lease is up, I allow to be rented out and go to the use of my son Hiram, and Anne La-key and Elizabeth Halford, to be equally divided betwixt them, until sold: next, I appoint Hiram Lakey and John Young, Executors.” <•

The defendant offered in evidence a sheriff’s deed for; the land in dispute, dated in 1840; also a levy and sale under a judgment and execution against Hiram Lakey, and proved a sole possession, under this purchase, for more than seven years before the commencement of this action. The defendant also offered in evidencé a bond, executed by John Lakey to Hiram Lakey, conditioned that he should make title to the said Hiram, when the purchase money therein mentioned, should be'paid: he also proved that Hiram Lakey was living on that part of *395the land claimed by him, at the time of the death of John, and continued so to do until 1840, when the defendant went in. .It had been part of the tract on which John Lakey lived, but on the making of this contract of sale, John, and Iiiram, his son, inade a dividing fence between them, which has ever since been observed and regarded as the line of separation between Hiram’s part, and the original tract; and was especially so regarded and observed by the widow of John Lakey, up to the time of her death. *The feme lessor*had inter-married with the other lessor, David Halford, before the death of John Lakey.

A verdict in favor of'the plaintiff was returned, subject to the opinion of the Court upon the points reserved, viz:

1st. Whether the Statute of limitations formed a bar to the plaintiff’s recovery?

2nd. Whether the will conveyed a life estate to the widow in that part of the land, claimed by the defendant as bargained to Hiram Lakey ?

Upon consideration of the questions, reserved, his Honor, being of opinion with the plaintiff, gave^judgment accordingly, from which, the defendant appealed to this Court.

*Gaither*and *Williams,*for plaintiff.

W. IF". *Wooclfin,*for defendant.

PeaRSON, J.

It is too clear for argument that the will does not give the widow a life estate, in that part of the original tract, which is claimed by the defendant. The testator had sold this part to his son Hiram, who was living on it, and cultivating up to the cross fence, which was the dividing line, while the testator lived upon and cultivated the other part. The words “ I allow the plantation where I now live on, and all my household furniture, &c., for the use and benefit of my wife, during her life,” embrace only the latter’ part. Resides, it is hot reasonable to suppose that the testator could have intended to encumber with a life estate, the part which he *396bad' sold to bis son, and for which be bad executed a bond to make title.

The remaining question is as to the effect, of the sheriff’s deed to the defendant, and his possession under it. Upon the death of tlfe testator, the legal title to the land in controversy, not being disposed of by the will, descended to bis three children as his heirs at law. ITiram, under his contract of purchase, had not such an equitable estate, or trust, as was liable to be sold under execution, by force of the Act of 1812; so the defendant, by the sheriff’s deed, acquired only the legal estate which had vested in Hiram as one of the heirs at law.

If the effect of this deed was to vest Hiram’s legal estate in the defendant, as a tenant in common with the other two heirs, then the defendant’s possession was not adverse; and although he had the sole possession for more than seven years, the estate of his co-tenants was not divested, and he did not acquire a title to the whole in severalty. In this view of the case, the plaintiff cannot maintain his action, for one tenant in common cannot sue his fellow, unless there is an *actual*ouster, either proven or admitted by the pleading*. The record sets forth that the defendant pleaded *not guilty;*his entering into the common rule is not set out, and we are not at liberty to assume that he admitted an “actual ouster.”

If the effect of the sheriff’s deed, and the defendant’s sole possession under it, was to divest the estate of the other two heirs, and amounted to an"actual ouster, then the defendant’s possession was adverse, and being continued for more than seven years, ripened his title to the whole in severalty. In this view of the case, the plaintiff cannot maintain his action, unless he can bring his case within the saving of the'Statute of limitations, by reason of the *covert/ure of*the *feme*lésso'r.

In *Williams*v. *Lanier,*Busb. 30, the rule is said to be, “where the wife must be joined, the Statute does not bar: where the husband must sue alone, or may, at his election, join the wife, the Statute does bar.” It is also said in that case, where the eviction is *before the coverture,*the wife must be joined: when the eviction is *dmrmg the coverture*(as in .our *397case) the husband may sue alone or may, at his election, join the wife,”

This seems to be conclusive: the husband cannot prevent his right of entry from being *tolled*by joining his wife, and she, or her heirs, have seven years, after his death, in which to sue.

A husband, without joining his wife, can make a lease for years. Bac. Abridgt. “ Leases and terms for years”: consequently he may bring ejectment without joining the wife. “ It is considered as settled, that although the husband may join the wife, yet it is not necessary that the husband and wife should join in a lease to try the title to her estate : he alone may make a lease for that purpose.” Bac. Abr. *“*Ejectment.” Several cases are there cited in which the husband has maintained ejectment on his own demise. The Statute 32 Hen. 8, *enables*husband and wife to make a lease which is binding on her after coverture, but this in no wise affects his right at common law to make a lease alone which is valid during the coverture. In *Williams*v. *Lanier,*this doctrine is fully discussed and it is unnecessary to repeat it. In that case there was issue born, and the *decision*in respect to the action in the nature of *Waste*is confined to the facts there presented; but the general remarks and reasoning of the Court, in respect to the Statute of limitations, is equally applicable to a case where there is no issue; for although the birth, of issue is required to make the husband “ tenant by the curtesy initiate ” and may be necessary to give him a seizin or free-hold in severalty, or in his own right, yet it has no bearing on his right to the sole possession, by force of which he sues alone in trespass *qucure clausum fregit*for an injury to his crop, or may make a lease for years, and of course may bring ejectment to recover possession if he is evicted.

Taking our case in either point of view, the plaintiff cannot maintain his .action, and the judgment in his favor must be reversed; and upon the questions reserved, the verdict, being rendered subject thereto, must be set aside and a non-suit entered.

*398Upon the argument our attention was called to *Burton*v. *Murphy,*N. C. Term Rep. 259, where it is held that one who holds sole possession under a deed from one tenant in common for the whole tract has an adverse possession, which in seven years will ripen his title as to the whole. And our attention was also called to *Cloud*v. *Webb,*3 Dev. 318; and'particularly to the very full and learned argument of *Mr.*Winston, *(P. II.*Sr.,) who controverts the decision in *Burton*v. *Murphy.*As in either point of view, the case under consideration is against the plaintiff, we are not at liberty now to decide what is the effect of a conveyance of the whole by one tenant in common, and a sole possession for seven years by the purchaser.

Per CuriaM. Judgment reversed.