Den Ex Dem. of McRee v. Alexander

12 N.C. 321 | N.C. | 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 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, 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,7 N.C. 577, that the grammatical construction of the words enforced such construction, since the words "person or persons" in the proviso meant where there is a single plaintiff he must be under a disability in order to come within the exception; or where there are several plaintiffs, they must all be under disability. For these reasons I think judgment should be entered up for one-third part of the land, the share of the femecovert. (324)

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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, 7 N.C. 577. The decisions on this point are uniform, as far as I know, and I shall not now inquire whether they are founded on the technical reason that, the action being joint, all or none of the plaintiffs must recover, otherwise the judgment does not pursue the writ and declaration; or whether on the very words of the statute. But I must say that the result is disgraceful to our system of jurisprudence, as it sacrifices the spirit of the proviso either to technical absurdity or to literal construction. But neither of these reasons can be brought to bear in this case. The action of ejectment eo nomine is not within the statute of limitations. It is true that the statute bars an entry, and that this action cannot be brought but by one who has the right of entry. The law, however, does not require a joint entry to be made; each may enter according to his estate or right. Where many have a joint right of entry, and one enters, his entry inures for the benefit of all; if there is a joint title, and some have lost and some have not lost their right of entry, he who enters does it for the benefit of those whose right of entry is enforcible. It follows that if all have lost the right of entry but the one who enters, he enters solely for his own benefit, and becomes tenant in common with those who have acquired an estate in the land by possession or otherwise. But if after his entry those who have lost their right of entry recover their estates in a higher action, he becomes joint tenant, a coparcener, or tenant in common with them, according to the nature of their estates. (325)

In this case there is nothing in the statute which prevents the femecovert, one of the lessors of the plaintiff, 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, 27 N.C. 463; Holland v. Crow, 34 N.C. 275;Williams v. Lanier, 44 N.C. 30; Johnson v. Prairie, 91 N.C. 159;Cameron v. Hicks, 141 N.C. 35.