Cobham v. Ashe, 1 N.C. 123, 1 Tay. 123 (1799)

May 1799 · North Carolina Superior Court

1 N.C. 123, 1 Tay. 123

Cobham versus Ashe.

IN this ejectment, it was proved that Walker had sold the land in question to the plaintiff’s father, and had given him a bond, conditioned to execute a title at a future day ; at the same time, the father declared by deed, that the land was purchased for the plaintiff, his son. During the late war the commissioners of confiscated property, seized the land as the property of the father, and sold it to the defendant, who took possession in 1786, and remained in possession unto the present time. In 1798, and a short time before the present suit was instituted Walker executed a deed to the plaintiff.

Possession without endour of title does not avail. A right of entry cannot be transferred, where there is an adverse claim.

Haywood, J.

The defendant's possession, though continued for seven years, yet being unaccompanied with any colour of title, during a great part of that time, will avail him nothing. But the title of the plaintiff is itself defective, because the conveyance from Walker was at a time when the defendant was in possession under an adverse claim : even Walker, who had the legal title before this time, could only have acquired the possession, by a suit in ejectment ; but this right of entry, he ought to have enforced himself, and could not legally transfer it to the plaintiff.

Verdict for the Defendant.