70 S.E. 843 | N.C. | 1911
The plaintiff offered the evidence which was rejected, for the purpose of showing that he and defendant derived their title from the same source, Caleb Allen, and that the plaintiff was not required, if that be true, to prove a good and perfect title in Caleb Allen, from whom both titles were traced, upon the familiar rule that where the title of both parties is disclosed and found to have a *357
common origin, the plaintiff, having the older of the two, is entitled to recover, unless the defendant shows that he has a better title than the plaintiff, which was derived either from the person under whom they both claim or from some other person who had such better title. It is not a case strictly of estoppel, but a well-settled rule of evidence, founded on justice and convenience. Johnson v. Watts,
In Bigelow on Estoppel (5 Ed.), p. 547, we find it laid down that the relation of landlord and tenant is virtually created, so far as the question of estoppel is concerned, where a party enters into possession of land under a contract to purchase it; and such a person, until ousted or disturbed in his possession by one having a paramount title will not be permitted in an action for possession by the party under whom he entered to set up a title inconsistent with his. The doctrine of estoppel, with reference both to the grantee in a (452) deed and the purchaser under a contract of sale, as stated in Bigelow on Estoppel at pages 546-547, has received the approval of this Court, though the text-book was not cited. Drake v. Howell,
That the contract between Caleb Allen and John Rogers, defendant's lessor, was not in writing, if that be the fact, can make no (453) difference. This is not an action by the vendor to enforce the performance of the contract by the vendee, and the statute of frauds is not involved. Cowell v. Ins. Co.,
In this view of the case, the testimony offered by the plaintiff should have been admitted, and there was error in excluding it.
New trial.
Cited: Person v. Roberts,