| N.C. | Dec 5, 1853
The land in question, it was conceded, had been the property of Ann Eliza Bolton. She intermarried with one John McAuliff, an unnaturalized foreigner, who resided in the county: a deed was exhibited from McAuliff and wife to Mary Eliza Suter, properly authenticated; Mary E. Suter died, and there was a regular sale by the administrator to pay debts, and a deed from him under an order of the County Court, to the lessor of the plaintiff.
The defendant claimed under a sale of McAuliff's interest in this land, by virtue of a fieri facias, bearing test prior to the date of the deed from McAuliff and wife, to Mary E. Suter. *71
It was insisted by the plaintiff, that McAuliff, being unnaturalized, could have no interest in the land which could be sold by a fi fa.
The defendant contended that the plaintiff, being privy in estate with Mrs. Suter, who had accepted a deed from McAuliff, was estopped to deny his title.
The Court being of opinion, that McAuliff, being an unnaturalized foreigner, could hold no interest in land subject to be sold, and that the plaintiff was not estopped, so instructed the jury, who returned a verdict for the plaintiff.
Rule for a venire de novo for error in the instruction of the Court. Rule discharged and appeal to this Court. The defendant's counsel admits that it is a well settled principle, that an alien cannot take land by descent, courtesy, dower or other title, derived merely from the law. 7 Rep. 25. PAUL v. WARD, 4 Dev. 247. BELL, on the property of Hubbard and wife, 151 (67 Law Lib. 114.) The defendant did not, therefore, acquire any interest in the land in controversy, by his purchase under the execution against McAuliff. But his counsel contends, that the plaintiff's lessor claims under the same person, and is, therefore, estopped to deny his title, and that, as the defendant purchased under a fieri facia, which bore teste prior to the date of the deed from the said McAuliff and wife, to the person under whom the lessor claimed, the latter could not recover. The doctrine contended for, in the ingenious argument of the counsel, is, to a certain extent, undoubtedly true, and is well supported by the cases to which he refers, as authority for it. That doctrine is, that as the lessor of *73 the plaintiff, in an action of ejectment, is bound to show a good title in himself; the defendant being in possession, may generally show in his defence a better title than that of the lessor, outstanding in a third person. But, if both parties claim title under the same person, it is not competent to either, as such claimants, to deny that such person had title. MURPHY v. BARRETT, 1 Car. Law. Reports 105. IVES v. SAWYER, 4 Dev. and Battle 51. That rule must give way, however, when the party can show a better title in himself, as is proved by the cases referred to by the plaintiff's counsel. LOVE v. GATES, 4 Dev. and Bat. 363. NORWOOD v. MORROW, Ibid. 442. BRERETON v. EVANS, Cro. Eliz. 700.
In the present case, the lessor of the plaintiff has shown a perfect title in himself, for the deed from McAuliff and wife, to Mary E. Suter, was sufficient to pass the title of the wife, to her; the same having been acknowledged, and the wife privately examined, as required by law.
It is true, that the execution of the deed by the husband had no effect to pass any interest from him, for the very good reason, that he had none; yet, he was a necessary party to enable his wife to convey her interest. If, then, the lessor, who claimed under Mary E. Suter, had been in possession, he could have defended himself in an action of ejectment, brought by the present defendant, by showing title in himself, and we can see no good reason why that title may not be shown to avail him, in the same kind of action, brought by himself.
We have not adverted to the act of 1848, ch. 41, which prohibits the sale of the husband's interest, because the plaintiff's counsel has not relied upon it, and we think his right to recover good, without it.
PER CURIAM. The judgment is affirmed. *74