99 N.C. 551 | N.C. | 1888
(after stating the facts). As the Court, in effect, intimated on the-trial, that in no reasonable view of the evidence produced, could the appellant recover, it must,
Then, accepting the evidence of the appellant as true, the-appellee Schenck was, at the time this action was brought,, and, for several years next before that time, had been, the-tenant of the appellant of the land in question; and for many years next before he so became such tenant, he had been the like tenant of those persons from and through whom the appellant claimed to derive title; indeed, the last mentioned tenancy antedated in its beginning the deeds-under which the appellees claim title. If this be true, and there was evidence from which the jury might have so found by their verdict — very clearly Schenck could not be heard to deny the title of his landlord; nor could he rid himself' of his relation as tenant to the appellant, without a complete surrender to him of the possession of the land. To allow him to agree and profess to hold possession under the landlord, and at the same time hold covertly for himself, or for another’s advantage, would be to encourage and uphold a gross fraud, which the law will never do; on the contrary, the rules of law, founded in good faith and sound public policy, render such a thing impossible. Davis v. Davis, 83 N. C., 71; Farmer v. Pickens, Id., 549; Abbott v. Oromartie, 72 N. C., 292; Pate v. Turner, 94 N. C., 47.
It was not necessary that the appellant should prove that-the lease to Schenck was over, or that he made demand upon him for the possession, because the latter denied that he was such tenant, and thus put himself broadly in hostility to the-right of the landlord. Vincent v. Corbin, 85 N. C., 108; Waddell v. Swann, 91 N. C., 108.
If it be granted that Toole was in possession of the land, with his co-defendant, at the time this action was brought,, and that he had title thereto, this fact alone could not pre
What we have thus said rests, to some extent, upon the supposition that the appellant properly suffered a judgment of nonsuit as to the appellee Toole. We are of opinion, however, that there was some evidence before the jury, that they might have considered, tending to prove, and from which they might have inferred collusion, and a fraudulent purpose on the part of the appellees, inconsistent with the ■duty and obligations of the appellee Schenck to his landlord, the appellant. The former was tenant of the land, taking the strongest view of the evidence for the appellant, continuously from 1868 — first under Phelps, then Rothchilds, then the appellant — until after 1883. The jury might not unreasonably have' inferred, from all the evidence, that Toole saw Schenck in possession of the land and knew that he was such tenant; he was, at least, put on inquiry in this
An adverse claimant of the land cannot thus surreptitiously, and collusively with the tenant, get possession of, ,and hold the land, to the prejudice of the title of the landlord. He has, in such case, no just possession — has only •such as is fraudulent — he takes under the tenant — is in possession by virtue of the latter’s possession, subject to all the rights of the landlord, and he may be evicted, just as the faithless tenant may be; indeed, without reference to the •tenant. When he gets possession, by collusive concert with the tenant, he at once becomes identified with him — shares and stands in his place, and he cannot resist the landlord’s .title, where the tenant cannot do so.
And so, also, if one enters upon the land by sufferance, ■permission or consent of the tenant of another, he will, himself, at once be charged, by the law, with that relation to the lessor, and he will not be allowed to act and assume relations in hostility to the title under which he went into possession. As he goes into possession with and under the tenant, he is bound by the allegiance the lessee owes the lessor, and he cannot throw it off at his will and pleasure. The rules of law that thus establish, secure and govern the ■relations between landlord and tenant, and those who get •possession of the land directly under the tenant, are founded in justice, fair dealing and sound public policy. Callender v. Sherman, 5 Ired., 711; Kluge v. Lachenour, 12 Ired., 180; Melvin v. Waddell, 75 N. C., 361; Pate v. Turner, 94 N. C., 47; Jackson v. Houser, 7 Cowen, 323; Stewart v. Roderick, 4 Watts & Lerg., 188; Dikeman v. Parish, 6 Pa. St., 210; Tay. on L. & L., § 705.
So that, whether the appellee Toole got possession of the land by collusion with, or by permission of, the appellee Schenck, the appellant might have recovered as against him. And as there was evidence from which the jury might have
There is error. The judgment of nonsuit must be reversed, and the case tried according to law. To that end, let this opinion be certified to the Superior Court.
It is so ordered.
Error. Reversed.