| N.C. | Dec 5, 1827
Lead Opinion
The case was submitted without argument by Wilson for the lessors of the plaintiff. No counsel for the defendant. The lessors of the plaintiff are tenants in common, claiming as heirs to McRee. Two of them were under no disability when their right of entry accrued; one was under the twofold disability of infancy and coverture. (322) More than seven years have elapsed since the right of entry accrued, and the question open on this record is, whether the right of entry of all, or any of them, is taken away by the act of 1715, ch. 2. By the third section of that act it is incumbent on the lessors of the plaintiff to show that they had a right of entry when the action was brought. No person or persons shall enter or make claim but within seven years next after his, her, or their right or title descend or accrue; and in default thereof, such person not so entering or making default shall be utterly excluded or disabled from any entry or claim thereafter *206 to be made — 3d section. The 4th section provides that if any person or persons that is or hereafter shall be entitled to any right or claim of lands, tenements or hereditaments, shall be, at the time the said right or title first descended, accrued, come or fallen, within the age of twenty-one years, feme covert, etc., that then such person or persons shall and may, notwithstanding the said seven years be expired, commence his, her, or their suit, make his, her, or their entry, as he, she, or they might have done before this act, so as such person or persons shall, within three years next after full age, discoverture, etc. Each individual lessor might in this case have brought an ejectment to recover his own share, without the necessity of joining the other who was under disability; for as tenants in common, they hold by several titles, or by one title and several rights; and so strictly was this notion acted on that until a late decision in this Court it was held that tenants in common could not make a joint demise. But as the lease is a mere fiction and the action liberally construed, so that the possession which is recovered inures to each lessor according to his title, such effect should be given to the demise as the law warrants, otherwise the substance will be sacrificed to form.
(323) Even the case of coparceners, who constitute but one heir, one may on her sole demise recover her own share; and so of the sole demise of a joint tenant to the plaintiff in ejectment, for that severs the joint tenancy, and entitles to a recovery for the lessor's proportion. Bowyer v. Judge, 11 East, 287. So where an estate descended to two coparceners, one of whom was under a disability and the other did not enter within the period prescribed by the statute, no doubt was suggested of the right of one who was under disability to recover. The only doubt was whether the disability of one did not preserve the right of the other. There were in that case, it is true, two counts, one upon a joint demise by the two coparceners, the other upon the sole demise of the one under disability, upon which latter one the judgment was entered up; but that was a mere form unconnected with the justice of the case. Langdonv. Rowlston, 2 Taunton, 441.
As the only plea in this case is the general issue, it is incumbent on the claimants in the first instance to establish their right to the possession; whatever operates as a bar to that right must apply distributively to each, and judgment rendered for those whose rights are preserved.
The construction of the 9th section of the same act bars the remedy of all the plaintiffs who necessarily join in the action, *207
although some are under disability, for it is competent for those who are under no disability, as well as their duty, to take care of the rights of those who were unable to protect themselves; and for the other reason stated by the Court in Riden v. Frion,
Addendum
In a joint action brought by several, where the defendant avails himself of the bar given to such action by the statute of limitations, all the plaintiffs must bring themselves within some of the savings of the statute, otherwise the bar is not avoided. Riden v. Frion,
In this case there is nothing in the statute which prevents the femecovert, one of the lessors of the plaintiff, *208 from entering; and if her brothers and coheirs had not lost their right of entry, she entered for their benefit also, and they became by our law tenants in common. If they had lost their right of entry, she entered for her own benefit, and became tenant in common with the defendant, who had acquired an estate by possession, for tenants in common may hold their estates by different titles. The one may be wrongful and liable to be defeated, the other rightful and indefeasible.
But if the plaintiff is driven from all other grounds, there is one on which she may rest her case. This action is not brought by several plaintiffs; it is brought by John Den, the lessee. He derives title, it is true, from three; but they are not the plaintiffs, and if his lease from them or any of them is good it is sufficient. If there was a real lease and the lessee had been evicted, and had brought his ejectment, which is the appropriate remedy for the eviction of a termor, it would be no objection to his title that he claimed from three different persons. If the title of one of them was good for the whole, he would recover the whole. If the title of one was good for a part, and that of the others bad for the whole, he would recover that part. The lessor of the plaintiff does not lose by the fiction of the lease; and the question on the trial is, Could the lessors, or any of them, make a valid lease; that is, had they, or any of them, a right of entry to the whole or to any part; and if to a part, what part? In the case of a real lease, the lessee might set up a title under any number of different lessors, from whom he actually claimed the estate, however adverse their claims might be. But in the case of a fictitious lease, as that is a proceeding by leave, under the sanction of the court, demises from many persons, claiming differently, would not be permitted, because it would make the case too complicated for fair and easy investigation. But (326) in a real lease, where the party actually sets up title from many different persons, however complicated and various their titles may be, I do not perceive how the court could interfere and confine him to any one or more of those titles; he must be permitted, if he can, to show it from any source.
I therefore think that the judge erred in saying that there should be judgment for the defendant, and that all the lessors of the plaintiff were barred of an entry unless all were within some of the savings of the statute.
PER CURIAM. Judgment affirmed.
Approved: Caldwell v. Black,