Doe ex. dem. Thomas v. Orrell, 27 N.C. 569, 5 Ired. 569 (1845)

June 1845 · Supreme Court of North Carolina

27 N.C. 569, 5 Ired. 569

DOE EX. DEM. JOHN W. THOMAS vs. JOHN ORRELL.

A person who was in apparent possession of a tract of land, when it was sold hy the Sheriff under an execution against him, and in like possession, when an action of ejectment was brought against him, cannot, after entering a de-fence to the action, be permitted to allege that others, who were also in possession, had both the title and the sole possession.

If the person thus sued meant to disavow any possession in himself, he should not have entered any defence.

Upon a judgment by default against a casual ejector, if it be shewn to the Court that there are other persons in possession, holding different parcels in severalty, judgmeht will not be allowed for the whole tract sued for, but only for the part, of which the person was in possession, on whom the declaration was served.

Appeal from the Superior Court of Law of Davie County, at the Spring Term 1845, his Honor Judge Bailey, presiding.

This was an action of ejectment. The title of the lessor of the plaintiff was a purchase and a conveyance of the premises from the Sheriff, upon judgments and executions against the defendant; who was in possession of the premises at the time of the Sheriff’s sale, and also when this suit was commenced.

The defendant offered to prove, that, before the judgments rendered, he had sold and conveyed the land to his two sons; one of whom lived in the house, in. which the defendant resided, and the other occupied a separate and distinct portion l^e tract i af]d that, in truth, the possession of the lands, as well as the title, was in the sons at the time of the suit brought. But the Court refused to receive the evidence, and the jury returned a verdict for the plaintiff, and from the judgment the defendant appealed.

Clemmons for the plaintiff.

Boyden for the defendant.

Rxjffin, C. J.

It being admitted, that the defendant was actually an occupant of the premises, that is sufficient to sustain this action against him. The offer to give evidence of the possession of the sons, under the defendant’s conveyance, was but a covert attempt to elude the rule, that in ejectment by the purchaser at Sheriff’s sale against the debtor himself, the latter cannot set up a title out of himself. If he meant to disavow any possession in himself, why did he defend ? If the defendant had hot defended, but it had been shewn to the Court that there were other persons in possession, holding different parcels in severalty, judgment would not have been allowed for the whole against the casual ejector, but only for the part of which the person was in possession on whom the declaration was served — Bul. N. P. 98. But, after having defended for the whole, and when it is clear, that the defendant is, at best, one of the possessors, it is no excuse to him to say, that there are others also in possession. If the others be in possession, as he alleges, they cannot be prejudiced by the judgment against the present defendant; for every plaintiff in ejectment takes possession at his own risk, and must take care not to take more than he is entitled to, nor to turn out persons, who have the title, on which there has been no judicial decision. The lessor of the plaintiff can, of course, have the defendant put out of the premises ; but he will enter, himself, at the hazzard of being a trespasser on the sons, provided they really are entitled to the land. If he wished to bind them by the judgment in this action, he ought to have served them also with a copy of the declaration. As he did not, the sons. are still at liberty to assert their title against the lessor of the plaintiff; but the defendant has no right to assert it for them, or, rather, to set up their title and their possession with him to protect himself from being evicted.

Pee. CtoiaMj Judgment affirmed.