28 N.C. 361 | N.C. | 1846
Ejectment for a house and lot in the town of Elizabeth City. One John King was seized of the premises in fee, and, on 4 September, 1834, they were sold under a judgment and execution against him, by the sheriff of Pasquotank, and conveyed to John C. Ehringhaus. On the same day Mr. Ehringhaus conveyed the premises in fee to Jeremiah M. King in trust for Margaret King, wife of the said John King, to her sole and separate use for life, and not subject to any control of her said husband; and upon a further trust, after her death, for such child or children as she might have by her said husband, and as might be living at her death, if any; and if there should be no such children or child, then in trust for certain other persons. After this conveyance John King and his family continued to reside on the premises; and other creditors of John King obtained judgments against him and had the same house and lot again sold upon their writs of fieri facias, and Charles R. Kinney became the purchaser and took a deed (362) from the sheriff. He thereupon brought an ejectment against John King and Jeremiah M. King, and recovered the premises in April, 1837. Kinney sued out a writ of possession, but did not have it executed; and a witness for the defendant proved that in October, 1837, he heard Kinney say to John King, who occupied the house, "You may stay here till I see you again"; and the said King did remain in the house the residue of that year. Another witness proved that in the latter part of 1837 Kinney directed the witness, if he knew of any person who wanted a house, and would make a good tenant, to lease the premises for him to such person. The defendant further proved by one Eslick that he entered into the premises on 10 January, 1838, and occupied the house as a tenant of Kinney until the following June or July, when he left the premises and surrendered them to Kinney. On 10 *262 November, 1838, the present defendant contracted with Kinney for the purchase of the premises, and shortly thereafter took a conveyance and possession of the same, and has since occupied them to the present time.
In 1841 Jeremiah M. King died, having made a will and thereby devised "all his real and personal estate to his wife, Keziah," and made her executrix. He died without issue, but left five or six brothers and sisters, who were his heirs at law. John King also died before the suit was instituted, leaving his wife, Margaret, surviving. The present action was commenced on 23 October, 1845, and the declaration contains three counts; the first on the demise of two of the sisters of Jeremiah M. King; the second on the demise of his widow and devisee, Keziah, and the third on the demise of Margaret, the widow of John King. On the trial it was insisted on the part of the defendant that the plaintiff was not entitled to a verdict on the first count, because it was on the demise of two only of the sisters of Jeremiah M. King, (363) whereas it should have been on that of all his heirs at law. But the court held that, supposing the legal title to have been in J. M. King, and have descended from him to his heirs, the jury might find for the plaintiff on that count, notwithstanding it was upon the demise of only a part of the heirs at law. It was insisted further on the part of the defendant that the evidence established that he and those under whom he claimed had been in the continued and peaceable adverse possession of the premises for seven years and more before this suit was commenced; and, therefore, that the rights of entry of the plaintiff's lessors were barred, and he moved the court so to instruct the jury. But the court refused to do so.
The counsel for the defendant then further moved the court to instruct the jury that there was evidence that the said Kinney had not abandoned the premises, but intended to retain and occupy them, which instruction the court also refused to give.
The counsel for the defendant further requested the court to instruct the jury that if the possession of Kinney during 1838 was consistent with the usage of landlords in the same community — renting out the house when he had an opportunity or had an application for it, and closing it up for short intervals only because he could not rent it to a suitable tenant — that would be sufficient. But the court declined also to give that instruction, and instructed the jury that in order to bar the plaintiff it was necessary that the defendant should show a continued possession in himself and Kinney, under whom he claimed, for seven years, at least. The jury found a verdict for the plaintiff, and from the judgment the defendant appealed.
On the first question Bronson v. Paynter, (364)
A defense of this nature admits the better right to have been in one or more of the lessors of the plaintiff. The onus is on the defendant to show a possession adverse to the other claimant and continued for the full term of seven years; and this ought to be established by evidence that does not leave the point of his possession doubtful, since the original right ought to prevail unless the bar plainly appear. Now, for a period of four and a half or five months — from June until at the earliest, about the middle of November — there was no actual occupation of the premises; and the point is whether it can be said that the possession then was legally in Kinney. The general rule is that where there is no actual possession by some person it is constructively in the owner. Therefore, the possession of Kinney, if existing, must, in order to answer the defendant's purpose, be deemed, in a legal sense, the actual possession. And here the remark occurs that the whole question turns on the first instruction prayed, and that the two others, as (365) expressed, and as far as they differ from the two first, ought, without doubt, to have been rejected; for an intention to occupy cannot amount to occupation unless denoted by actual occupation, prior and subsequent, so near together as to show an uninterrupted exercise of ownership or continued assertion of right, and liability at all times to the possessory action of the owner. And, secondly, as there was no evidence of "the usage of landlords" in the town of Elizabeth in particular, or of Kinney's motives for leasing or selling the premises before November, or of his closing the house for short intervals, the defendant could not demand an opinion of the court upon the hypothesis of a usage, or that Kinney closed the house, and much less that he did so for *264
want of a suitable tenant. The merits of the controversy, then, depend on the point first raised, which is, whether the defendant has shown that from June until some time in November, 1838, the possession is to be taken, in point of law, to have been in Kinney. We cannot undertake to say what interval between two actual personal occupations under the same claim of title will interrupt the possession in a legal sense. A day, or week, or month, or even a longer time between the outgoing of one tenant and the incoming of another may not of itself, perhaps, make a chasm in the possession, especially if in the meanwhile there be any use of the premises or liabilities incurred on account of the premises — as by listing by one, as owner or occupant, for taxes, or by putting or leaving property there, though of little value, as in the cases given in the books of beer in the cellar or hay in the stable, or by locking up the house and keeping the key. But there is in this case nothing of that kind — nothing except that in June a tenant of Kinney left the premises, and four and a half or five months afterwards the defendant purchased from Kinney and went into possession. It is to be taken that Eslick leased only for the time he occupied, since nothing more appears, (366) and, therefore, that Kinney might have immediately entered or leased to another person. Eslick says, indeed, that he surrendered the possession to Kinney, and it is insisted that Kinney is to be deemed thenceforward in possession. But that is not a just inference. It does not follow, because Eslick's lease and possession were determined, that Kinney then took, much less that he continued in possession for the next five months. It is argued that the case is within the reason of the rule, Blairv. Miller,
PER CURIAM. No error.
Cited: S. c.,