Gilliam v. . Moore and Freeman

44 N.C. 95 | N.C. | 1852

On the trial, before his Honor, Judge Manly, at BERTIE, on the last circuit, the facts appeared to be as follows: The land in controversy belonged originally to the defendant, Moore, who, on 30 May, 1837, conveyed it by deed of mortgage to the lessor of the plaintiff, for the purpose of securing certain debts therein recited. Moore continued in the possession of the land, and, becoming indebted to the defendant, Freeman, the latter obtained a judgment against him, upon which an execution was issued and levied upon the land, which was sold, and the defendant, Freeman, became the purchaser, and took a deed therefor. Freeman afterwards had a declaration in ejectment served upon Moore, who was still in possession, and upon Moore's failing to appear, obtained judgment by default against the casual ejector. A writ of possession was then issued, by force of which Moore was turned out in the latter part of December, 1843, and one Holder was let into the possession of the land by Freeman as his tenant, and so remained until 1 January, 1845, when one Mrs. Miller took possession as tenant also of Freeman. In September, 1845, the defendant, Moore, and his son, John A. Moore, entered into the possession of the land, under a contract of purchase from the defendant, Freeman, and so continued until this action was commenced in the month of May, 1851.

It was contended for the lessor of the plaintiff, upon these facts, that Freeman having been admitted to defend his landlord, could urge no defense which was not open to his tenant, Moore; and that (96) Moore was estopped to deny the title which, by his deed of mortgage, he had conveyed to the lessor of the plaintiff, and that consequently his possession was not adverse, so as to bar the lessor's recovery by seven years' possession, under color of title.

The defendants contended that there was no estoppel, and that there had been continued adverse possession and color of title by the tenants of Freeman, for more than seven years — to wit, from December, 1843, until the commencement of the action in May, 1851; and that the plaintiff's lessor was thereby barred of his right of recovery. His Honor, the presiding judge, was of opinion that the defendant, Moore, was not estopped to deny the lessor's title; that his possession, together with that of the other tenants of Freeman, being for more than seven years before the commencement of the action, under the color of Freeman's title, the right of the lessor of the plaintiff was barred. The jury being instructed to that effect, returned a verdict for the defendants, upon which judgment having been rendered, the lessor appealed to the Supreme Court. 1. That the defendant, Moore, and the defendant, Freeman also (who coming in to defend as landlord is limited to such defense as could be set up by his tenant), are estopped to deny the title of plaintiff's lessor and his right of recovery. By the execution of his deed, Moore, continuing in possession, became tenant at will to Gilliam, and was in good faith bound to retain and deliver possession to him whenever required to do so. And although eviction by paramount title might excuse him from his obligation to surrender possession, inasmuch as without any fault of his, it had become impossible to do so, yet, when by his repurchase, this impediment was removed, the obligation was renewed, and the estoppel reapplied. (Wiggins v. Reddick, 33 N.C. 380; Grandy v. Bailey, 35 N.C. 221;Freeman v. Heath, ibid., 498; Ogle v. Vickers, 31 Eng. C. L. R., 178.)

2. When Moore reentered into possession of the premises, and thus resumed the relations that subsisted between himself and Gilliam, (97) previous to the interruption of Freeman, the law adjudges the possession to follow the better of the two titles thus concentrated in him. There was consequently no adversary possession as against Gilliam, because he was himself in possession, by virtue of the possession of his tenant, Moore. 1. That the possession of Moore and his son, under the contract of sale between them and Freeman, was the possession of Freeman, and enured to his benefit, so as to bar the plaintiff's lessor in seven years. (Rhodes v.Brown, 13 N.C. 195.)

2. As to estoppel, he cited Jordan v. Marsh, 31 N.C. 234. there was an end of the old possession by Moore, and then a coming in of himself and son, under a new contract of purchase, and therefore no estoppel.

3. Could not Freeman recover of Gilliam upon the title ripened by this possession, especially as he had possession by both the Moores? Why, then, give the plaintiff's lessor possession in this action? The proposition that the defendant, Freeman, being admitted to defend as landlord, with the defendant, Moore, cannot set up any defense, which is forbidden to Moore, is fully established by Belfour v. Davis, 20 N.C. 443, and the other cases referred to by the plaintiff's counsel.

The other proposition contended for by the counsel, that Moore was estopped to deny the title of the plaintiff's lessor is neither supported by reason nor authority. It is, in our estimation, directly opposed by the case of Jordan v. Marsh, 31 N.C. 234. That case, as explained in the subsequent one of Grandy v. Bailey, 35 N.C. 221, was "where one of the purchasers at sheriff's sale had recovered in ejectment, and no imputation of fraud therein was made, and he was on the eve of taking actual possession under a writ of habere facias, when the tenant took a lease from him. The court was of opinion that if the tenant had been actually put out of possession by the sheriff, and had afterwards entered under a new lease, he might have defended such (98) new possession under the title of his landlord, against a subsequent ejectment by the other purchaser from the sheriff; and therefore it was held that he might take a lease from him who had recovered in the ejectment, without an actual eviction on a writ of possession — the court saying, `For what end should he be required to go through the useless form of being put out of possession, merely to be at the trouble of going back again?'" In Grandy v. Bailey, it is true, that the defendant was not allowed to protect herself under the lease which she had taken from the purchaser at the sheriff's sale; but it was because she was not on the eve of being turned out by the sheriff under a writ of possession, and her delivery of the possession to the agent of the purchaser was deemed by the Court to have been colorable merely, and not a bona fide transaction. The change of possession, in the case now before us, is not liable to that objection, because Moore was actually turned out by the sheriff, after the recovery in ejectment by Freeman, and did not regain the possession, under his contract of purchase, until nearly two years afterwards. But the very recent case of Freeman v.Heath, 35 N.C. 498, decided at the last Morganton Term, is relied upon by the plaintiff's counsel as an authority against the principle contended for on behalf of the defendants. If the principle of the present case be the same with that of Jordan v. Marsh, as we have endeavored to show, then the Court which decided Freeman v. Heath did not consider it opposed to that principle; for they refer to Jordan v.Marsh, and point out the distinction between the two cases. Ruffin,C. J., in delivering the opinion of the Court, says, "In an action by a purchaser under execution, against the defendant, the latter is only restrained from denying that he had some title, while a lessee is obliged not only not to deny his lessor's title, but also to surrender the possession to him, when required after the expiration of the lease." Now, if that distinction be a sound one, it must exist between all actual lessees and all constructive or quasi tenants; such, for instance, as mortgagors in possession, who are only tenants by sufferance to their mortgagees.Fuller v. Wadsworth, 24 N.C. 263. And persons coming in under a contract of purchase, who are mere tenants at will to their vendors.Love v. Edmonston, 23 N.C. 152. These constructive or quasi tenants cannot, while they remain in possession, dispute the title of those under whom they hold, but after their tenancy has ended, (99) and they have been put out of possession by their quasi landlords, or by any other person acting under the authority of legal process, they may acquire a new title, under which, if they afterwards regain the possession, they may protect themselves. This doctrine is not impugned by what is said by the Court in the case of Gwyn v. Wellborn, 18 N.C. 313, that if a mortgagor is ousted by a stranger, and regains the possession, he regains it still as the tenant of the mortgagee. So he does, if, as in that case, he regains the possession under the former title; but it by no means follows that such is the effect, if he comes in under a new distinct title. In the latter case we can see no reason why he may not claim adversely to his quondam mortgagee; and why the latter may not be barred by such adverse possession, continued for seven years.

There was no error in the judgment below, and it must be affirmed.

PER CURIAM. Judgment affirmed.

Cited: Dowd v. Gilchrist, 46 N.C. 355; Pate v. Turner, 94 N.C. 47; and in Dis. op., Pope v. Malthis, 83 N.C. 175.