| N.C. | Jun 5, 1829
FROM PITT. On the trial before his Honor, Judge NORWOOD, on the last fall circuit the lessor of the plaintiff produced a judgment and execution against John Brenon, and a sheriff's deed to him for the premises in dispute. He then proved that John Brenon died in possession of the land, and that the defendant, Catherine, was his widow, and it was admitted that she continued the possession as his widow upon his death, until her own, which happened during the pendency of the suit. There was no other *109 evidence of title in the plaintiff. The death of Catherine Brenon was suggested at March Term, 1827, but there was no entry of the abatement of the suit, nor of the award of process, to make her heirs parties; neither was there any entry of a plea by the defendant, Mooring, at the time he was made a party.
The defendant, Mooring, had never been in possession of the premises, and offered no testimony. His counsel moved his Honor to strike the suit from the record, there being no issue in it since (175) the death of Catherine Brenon, but his Honor overruled the motion. The counsel for the defendant then moved his Honor to instruct the jury that there was no evidence of title against the defendant, Mooring, and to direct that he plaintiff should be nonsuited. But his Honor instructed the jury that if defendant Brenon continued the possession of her husband and the defendant, Mooring, came in and defended her title and possession, he was estopped to deny the title of the lessor of the plaintiff. A verdict being returned for the lessor of the plaintiff, the defendant Mooring appealed.
The case was submitted without argument.
I think that the presiding Judge was right in all his positions — first, as to the want of an issue between the plaintiff and the defendant Mooring. When the latter, upon his own motion, was made defendant after issue joined between the plaintiff and the other defendant, and offered no new or additional plea, he very clearly adopted her defense and her plea. Secondly, as to the advice which the defendant called on the Court to give to the jury, that the lessor of the plaintiff took no estate by his deed from the sheriff, I also think that the Judge was right. For, as the widow of Brenon, who it is admitted continued the possession of her husband as his widow, and showed no other estate, she was estopped to say that nothing passed by the sheriff's deed. Her husband, whose possession she continued, being defendant in the execution, would have been estopped to make such allegation, had he been alive, and what is an estoppel upon him is equally so upon her. The defendant Mooring, coming in on his own motion, and never having been in the actual possession, must be taken as defending (176) her possession upon her title, he neither showing nor attempting to show title or possession in himself. The decision of the old Supreme Court, in Albertson v. Redding,
So for as regards the plaintiff's deed passing the estate by estoppel against the defendant in the execution, it has long been considered the law in this State, both in this Court and on the circuits, although formerly, it was held otherwise; and that the widow continuing her husband's possession as widow, and showing no title, is bound by estoppel of her husband, was ruled in Bufferlow v. Newsom,
PER CURIAM. Affirmed.
Cited: Duncan v. Duncan,