47 N.C. 412 | N.C. | 1855
The defendant in this suit had recovered in a former action of ejectment a moiety of the land in question, under which recovery, she, by her agent, took possession thereof. Before she entered, the lessor of the plaintiff had put a declaration in the hands of the sheriff which left the date of the demise blank, with directions to fill it up and serve it upon the person who should take possession, as soon as any one should do so. Possession was taken by McMinn, on 5th of March, 1851, and on the same day the blanks were filled up with that date and with name of the agent, McMinn, as tenant in possession, and the process returned as being served on him on that day.
Defendant, Matilda Red, at the return of the declaration, gave the bond required by law, and by leave of the Court was permitted to defend in lieu and stead of McMinn as his landlord, and entered into the common rule confessing lease entry and ouster and pleaded not guilty.
The defendant's tenant abandoned possession immediately after the commencement of this suit, and the plaintiff's lessor occupied the whole premises, from that time down to the trial of the suit. The case was tried on issues not necessary to be noticed, and resulted in a verdict and judgment for the *413 plaintiff. The defendant's counsel contended, 1st, that the suit had been brought before the plaintiff had any cause of action, and therefore was not entitled to recover.
2nd. That having taken possession of the land for which suit was brought he could not recover, and called upon the Court so to instruct the jury; this was declined by his Honor. For which defendant excepted, and, upon judgment being rendered against her, appealed to this Court. The declaration in this case was served upon the tenant in possession, on the fifth day of March, 1851, which was also the day on which the demise was laid. It had been placed in the hands of the sheriff, a short time before and prior to the time when the defendant's agent entered, with directions to serve it upon him as soon as he should enter upon and take possession of the premises in dispute. The defendant's counsel insist that the action was commenced too soon — before he had any cause for it. In making this objection he does not advert to the difference between the manner of commencing a suit in ejectment and in the other forms of action. The commencement of an action of ejectment is by the service of the declaration upon the tenant in possession, while in the other forms of action, it is the taking out the writ from the proper office, or its being filled up by the plaintiff's attorney. Haughton v. Leary, 3 Dev. and Bat. Rep. 21. But if there were any irregularity in this respect, the defendant precluded herself from taking any advantage of it, by coming forward and procuring herself to be made a party defendant upon entering into the common rule, to confess lease, entry and ouster. Fuller v. Wadsworth, 2 Ire. Rep. 263.
The remaining objection is directly opposed by the recent case of Johnson v. Swain, Bus. Rep. 335. The defendant's agent was undoubtedly in possession when the suit was commenced, and she was then upon her affidavit, admitted to *414 defend as landlord. If the lessor afterwards took possession of the premises, that fact ought to have been alleged by a plea since the last continuance, and that not being done, she cannot avail herself of it upon the plea of not guilty.
PER CURIAM. The judgment is affirmed.
