Phelps v. Blount, 13 N.C. 177, 2 Dev. 177 (1829)

June 1829 · Supreme Court of North Carolina

13 N.C. 177, 2 Dev. 177

Charles Phelps v. James Blount.

From Washington.

One claiming title under a party who is estopped to deny the title of the Plaintiff, is also bound by that estoppel.

He who claims a title by estoppel, is as .to those estopped, in the constructive possession of the land, and may maintain trespass.

Trespass q,uare ceausum pub git, tried before his honor Judge Strange, on the last Fall Circuit.

The locus in quo was a cypress swamp, which had never been in the actual possession of any one.

The Plaintiff offered no evidence, of title, but the will: of one Eleazjcr Swain, by which the land was devised to his son Thomas Swain, and a judgment and execution against the latter with a Sheriff’s deed to himself. He then offered to prove, that Thomas Swain and the De-fcndaut, under If.Is pretended title, entered upon the land, and o'ot a large, quantity of shingles, for which trespass *" the. action was brought.

June, 1829.

jjut his Honor thinking that the Plaintiff, fo entitle him to recover, ought either to prove an actual possession, or a good and sufficient title, to give him a constructive possession, and that although Thomas Swain might be estopped to deny his title, yet that the estoppel did riot extend to the Defendant — nonsuited the Plaintiff, who appealed to this Court.

No Counsel appeared for either party in this Court.*

Henderson, Chief-Justice.

I think the Judge erred in not extending the estoppel to Blount, for the case states, that Swain and the Defendant, under Swain’s pretended title, entered upon the land. Now it appears to me, that if Swain is estopped from setting up title, in himself, that Blount, who acted under that title, or to use the words of the case, the pretended title of Swain, is equally estopped; and that a title by estoppel, will, as to them estopped, as well as a title against the world, draw to it the possession. Which constructive possession, according to our notions, supports the action of trespass.

Per Curiam. — Let the judgment below be reversed, and a new trial granted.