30 N.C. 280 | N.C. | 1848
This was an action of ejectment brought to recover a house and lot of land in the town of Windsor. The lessor of the plaintiff showed in evidence a deed from one David Ryan to himself, and proved that the building and lot mentioned in that deed are the same as those described in the declaration. The said deed is dated 4 February, 1841. He then proved that in 1843, at a sale of said David Ryan's property, one George S. Holley was present and requested John Freeman, the sheriff, to put up for sale the interest of the said David Ryan, either in the building alone or in it and the ground on which it rested, and the said lot of land; whether he requested anything more than the building to be put up, there was conflicting testimony. The said John Freeman thereupon complied (281) with said request, and the said George S. Holley became the purchaser. The said Holley afterwards rented the said house to Dr. Robert H. Smith, who went into possession as tenant of said Holley, and continued in possession up to the time of the bringing of this action; first as the tenant of said Holley, and then as the tenant of the defendant, who had purchased of Holley whilst Smith was in possession. The defendant proved that the ground on which the building stood, and the said lot of land, formed, as early as 1815, a part of one of the public streets of the town of Windsor; that in 1832 or 1833 the building was placed where it now stands; that from the said year 1815 up to 1835 or 1836 the said street continued to be *206 used as a public street, except that part of it covered by the said building after the year 1832 or 1833; that in 1835 or 1836 the fence enclosing said lot of land was put up. It was then proved that Smith, as the tenant, first of Holley, then of Bird, who purchased of Holley, had been in possession of the said building three years next before the beginning of this action. The defendant contended that the plaintiff could not recover: first, because Smith, the tenant of Holley and Bird, having been in possession of the said building more than three years before the commencement of this action, then if the jury should believe from the evidence that the building only was sold, and not the ground on which it rested, nor the lot, the building is to be considered as personalty, and the defendant is protected by the statute of limitations. Secondly, that this action cannot be sustained for the building without the ground on which it rests or the lot of land. Thirdly, that the plaintiff had not made out a title for the ground on which the building was, and the lot belonged to the public. Fourthly, that the ground on which the building stood, and the said lot, being part of a street, (282) was not the subject of a grant, and therefore no estoppel could arise, although both parties might claim under the same person. Fifthly, as no deed was shown from said Freeman, sheriff, to said Holley, nor from Holley to the defendant, the defendant was not estopped. Sixthly, if the jury should be satisfied from the evidence that Holley claimed only the building, and not the ground on which it stood, nor the lot, the defendant was not estopped.
His Honor instructed the jury that the statute of limitations applied to the form of the action, and as this was an action of ejectment, the right of entry of the real owner was not barred until after seven years' adverse possession of the defendant under color of title; that whether the deed conveyed the house or the lot of land was a question for the court and not for the jury; that the deed from Ryan to the plaintiff conveyed an interest in real estate which could be recovered in an action of ejectment only; that as to the third, fourth, fifth and sixth objections made to the plaintiff's recovery, his Honor instructed the jury that the land upon which the house stood, though formerly a part of the public street of the town of Windsor, was the subject of a grant, as all land in the State not covered by water was subject to entry; that though the plaintiff might not have the real title, yet as the plaintiff purchased the property of Ryan, if Holley purchased it as Ryan's property, and, claiming title under Ryan, leased it to Smith, and afterwards sold it to the defendant Bird, that Bird would, as against the *207 plaintiff, be estopped to deny Ryan's title, and that, in order to create an estoppel, a deed was not always necessary. But whether Holley claimed the title of Ryan, and whether he afterwards leased it to Smith, were facts for them to find.
The jury rendered a verdict for the plaintiff. Rule for a new trial. Rule discharged and judgment according to the verdict. Appeal to the Supreme Court.
[Copy of the Deed from Ryan to Gilliam.] (283)
I have this day bargained and sold to Dr. John R. Gilliam for and in consideration of the sum of four hundred and fifty dollars, all my right, title and claim to the building now occupied by negro Tom and formerly occupied by Dr. John Haywood and known as Haywood's shop, and do convey all the interest that I may have had to the ground occupied or covered by the house as well as the land enclosed by the fence around the building. In witness, etc., 4 February, 1841.
DAVID RYAN, (SEAL.)
Many objections were urged against the recovery of the plaintiff's lessor in the court below, and have been again pressed in the argument before us. We have given to them a due consideration and have carefully examined the reasons which have been brought to their support. But, after all, we are compelled to say that they do not satisfy us that the defendant's case can be exempted from the operation of the inflexible rule, that whenever both parties claim under the same person, neither of them can deny his right, and then, as between them, the elder is the better title and must prevail. Murphy v.Barnett,
The deed from Ryan to the plaintiff's lessor estops Ryan from disputing his grantee's title, and the same estoppel extends to all persons who claim from or under Ryan, whether by deed or otherwise. Murphy v. Barnett, ubisupra. Holley took possession, by means of his tenant, of the house which he purchased at the sheriff's sale as the property of Ryan, and until the contrary appears he must be presumed to have entered under *209 the title acquired by his purchase. He cannot then dispute the title of Ryan, and that title had been previously conveyed to the plaintiff's lessor.
Another position is assumed in the argument here, that the deed from Ryan to the plaintiff's lessor conveys only a life estate, and that Holley purchased only the reversion in the house, that being all the interest which Ryan then had in it, and that the estoppel could not extend to such reversion. All this may be true, and yet it cannot avail the defendant, because his vendor, Holley, entered into possession of the house immediately after his purchase, and he must, therefore, be taken to have claimed a present and not a reversionary interest.
The last objection is clearly untenable. In the argument it is said that Holley purchased and took possession of the house only, and not the lot on which it stood, and that consequently he could be estopped for the house only. But that is sufficient for the lessor's purpose. He is entitled to a verdict if he can show a wrongful possession by the defendant of any (286) part, no matter how small, of what he claims in his declaration.Huggins v. Ketchum,
We have thus considered all the objections urged by the defendant against the recovery of the plaintiff's lessor, and finding them untenable, we must affirm the judgment.
PER CURIAM. Judgment affirmed.
Cited: Johnston v. Watts,
