46 N.C. 353 | N.C. | 1854
There were two counts in the declaration; one on the demise of P. W. Dowd, the other on the joint demise of the heirs at law of Willis Dickinson. The action was commenced in 1850. The plaintiff offered in evidence a deed from one Johnson to Willis Dickinson, dated in November, 1812, and showed title and possession of the land in controversy in those under whom he claims, as far back as 1796. Dickinson died seized and possessed of the land in 1820, leaving a wife and seven children. The widow and a son as tenants held possession of the land until 1830, when Major Dowd, who married a daughter of Dickinson, exchanged the land with Gilchrist, who entered into possession and continued to hold it until 1836, when the contract was rescinded. Gilchrist then purchased the land of Dowd, giving his notes and taking Dowd's word for a title. Major Dowd died in 1840, leaving twelve children, of whom P. W. Dowd was one and a grand son of Dickinson. The defendant, after the death of Major *354 Dowd, took a deed from his son, Alexander Gilchrist, for the land in dispute. The defendant offered this deed in evidence, which was objected to by the plaintiff, but received by the Court, subject to the exception. It was not registered until 1851, after the death of Major Dowd, and only once, during his whole occupation, was he heard to assert any other right or title, than the one he had acquired from Major Dowd. It was proved that on several occasions he spoke of his occupation as being under Dowd, by virtue of a bond to make title. The notes which had been given for the purchase money were also in evidence.
P. W. Dowd for himself and the other heirs, in the year 1850, demanded the land of the defendant, which he refused to surrender, and this action was then brought.
It is agreed that if the Court shall be of opinion that the plaintiff is entitled to recover, judgment is to be entered accordingly; otherwise, for the defendant. Defendant contended that as thirty years had not elapsed at the death of Dickinson, the ancestor, the plaintiff could not recover, as the occupancy had not been sufficient to support the presumption of a grant. The defendant also contended that he had acquired title by more than seven years' adverse possession under a color of title. The plaintiff further insisted, that as the defendant had come in under Major Dowd, who had married a daughter of Willis Dickinson, he was estopped to deny the plaintiff's title.
A verdict was entered for the plaintiffs, subject to the opinion of the Court. The Court being of opinion with the plaintiffs, gave judgment for them, from which judgment the defendant appealed to this Court. His Honor was right in directing a judgment for the plaintiffs, to be entered on the special case; that stated that the defendant was in possession of the land in 1836, claiming under *355 a contract of purchase from Major Dowd, who had married one of the daughters of Willis Dickinson, who died in 1820, seized and possessed of the land, and leaving a widow and seven children. Major Dowd died in 1840, leaving twelve children, of whom the lessor, P. W. Dowd, was one. When the defendant entered under his contract of purchase from Major Dowd, he became his tenant at will, and as such, could not dispute his title. LOVE v. EDMONSTON, 1 Ired. Rep. 152. Now, that title was either the title of his wife, as one of the heirs at law of Willis Dickinson, or his own independent title. Whichever it was, the defendant could not dispute it while he remained in possession under it; nor could he acquire a new title under which to protect himself, until he had surrendered the possession to his quasi landlord, or been put out by him, or by some other person acting under the authority of legal process. GILLIAM v. MOORE, Bus. Rep. 95; and the cases there cited. If the defendant then was in possession, under the title which descended from Dickinson to his heirs, the plaintiff was entitled to recover under the second demise; but if he were in under an independent title in Major Dowd, then the plaintiff was entitled on the first demise of P. W. Dowd, one of his heirs at law. So, quacumque viadata, the plaintiff was entitled to a judgment on the special case.
But the defendant's counsel contends that, as a general verdict and judgment were rendered upon both demises, and as the lessor in the first demise was one only of several heirs who were entitled, the verdict and judgment were wrong. It was decided directly to the contrary in the cases of HOLDFAST v. SHEPPARD, 6 Ired. Rep. 361; BRONSON v. PAYNTER, 4 Dev. and Bat. Rep. 487.
The judgment must be affirmed. *356