Den on Dem. of Love v. Edmonston, 23 N.C. 152, 1 Ired. 152 (1840)

June 1840 · Supreme Court of North Carolina

23 N.C. 152, 1 Ired. 152

Den on DEM. of ROBERT LOVE vs. NINIAN EDMONSTON.

A party, who has been let into possession of land, under a contract of sale, or for a letting which has not been completed, is only a tenant at will of the vendor; and his interest is determinable insianter by a demand of the possession. In such case, a three week’s notice to quit is a determination of the tenancy; or, if the tenant do any act which amounts to a disclaimer of the vendor’s or lessor’s title, it operates as a forfeiture, and no notice to quit is necessary.

The rule that a vendee cannot dispute his landlord’s title, extends to the cáse of one who takes possession under a contract of purchase — he cannot controvert the title of the person who let him. into possession.

This was an action of ejectment, for a tract of land, tried at Haywood, on the last circuit, before his honor Judge Hall.

The lessor of the plaintiff read in evidence a deed from James Lockhart to himself, covering the land in dispute, and dated the 28th of July, 1829. He also shewed aregular chain of conveyances from the State to Lockhart; and then exhibited the following written agreement between himself and the defendant, to wit:

“ Robert Love and Ninian Edmonston agree thus; as respects the tract of land on which said Edmonston lives, called the Probe Bottom, which has been valued to the said R. Love, under a contract with James Lockhart and said Love; and the said Edmonston agrees thus with the said Love, that in case the said Lockhart will unincumber the said tract of land from a mortgage to James Greenlee, he will well and truly pay to the said R. Love, agreeably to the said valuation, six hundred dollars, in three annual payments, with interest on the same. But, if otherwise, that the said James Lockhart will not cojne forward and unincumber the said land, then the said Edmonston will relinquish all claim from any agreement between the said Love and Edmonston; and that the said Edmonston will pay the said Love rent for the present year, provided the said Love hold on to his agreement with James Lockhart.”

The lessor then exhibited a regular notice to quit, which was served upon the defendant three weeks before the declaration in ejectment was issued; and proved that, upon the notice being served upon him, the defendant said, “the land does not belong to Love — I will shew them who owns the land, and who is entitled to rent.”

The defendant objected that he had not a sufficient notice to quit; and moved to nonsuit the plaintiff. The plaintiff’s counsel insisted that no notice was necessary; as the defendant disclaimed to hold of the plaintiff’s lessor; of which opinion was his Honor, and the motion for the nonsuit was refused. The defendant then exhibited a grant from the State to one Allison, which, it was alleged, covered the same land, and was of prior date to that under which the lessor of the plaintiff claimed; but the Court was of opinion that the defendant was estopped from shewing title out of Lockhart, or the lessor of the plaintiff in this action. The plaintiff’s lessor had a verdict and judgment, and the defendant appealed.

No counsel appeared for either party in this Court.

Daniel, Judge,

after stating the case as above, proceeded

as follows: A party who has been let into possession of land under a contract of sale, or for a letting which has not been completed, is only a tenant at will of the vendor. Leigh’s N. P. 861, who cites Ball v. Callimore, 2 Crom. Mee. & Ros. 120, 1 Gale, 96—Dunk v. Hunter, 7 Eng. C. L. 115—Bingham v. Cartwright, 5 Eng. C. L. 153, 154. And such interest is determinable instanter, by a demand of the possession. Doe d. Jones v. Jones, 21 Eng. C. L. 153, 154. Den on dem. Carson v. Baker, 4 Dev. 220. The tenant then having only the right of egress and ingress to remove his effects. Where A. entered into an agreement with R, to sell land then in possession of the latter, on certain terms; and to execute a conveyance, in case A. should be found owner thereof, and could make a good title thereto; and agreed that, in the mean time, B. should remain in possession; held that A. could not bring ejectment against B., without having demanded the possession, or otherwise having determined B’s tenancy. Doe d. Newby v. Jackson, 8 Eng. C. L. 126. We think the three week’s notice to quit, which had been given to the defendant, certainly determined his tenancy. If the tenant, however, does any act which amounts to adisclaimer of the lessor’s title, it operates as a forfeiture, and notice to quit is not necessary, for the landlord may treat hiix. as a trespasser. As if he refuse to pay rent, on the ground another person had ordered him not to pay any; or if he attorn to another person. Doe d. Whithead v. Pittman, 28 Eng. C. L. 375—Bul. N. P. 96. So if the lessee disclaims the lessor’s title. Leigh N. P. 876. We think, on the question of notice, the charge of the Judge was correct.

Secondly. It is a rule that the lessee cannot dispute his landlord’s title. Doe d. Johnston v. Baytup, 30 Eng. C. L. 67. And this principle extends also to the case of one who takes possession under a contract of purchase; he cannot controvert the title of the person who let him into possession. The American cases on this head are numerous. Leigh’s N. P. 928, note, (American edition.) The circumstance of the defendant being in possession of the land, when he took from Love the deed containing the conditional agreement of purchase, did not enable him in this action to set up the title of Allison, because, by the terms of that agreement, he holds the possession thereof under Love. The case of Doe d. Bullen v. Mills, 29 Eng. C. L. 16, was, where A., having without title entered upon land and built a cottage, afterwards accepted a lease, (by indenture.) from B., C. claiming the land as his own, paid to A. £,20, to give up the possession to him; held that A. had estopped himself from controverting the title of B.; and that C. was bound by the estoppel, as having come in under, and received the possession from, B.

We think the judgment must be affirmed.

Pek Cuiuam.Judgment affirmed.