Den on demise Jordan v. Marsh, 31 N.C. 234, 9 Ired. 234 (1848)

Dec. 1848 · Supreme Court of North Carolina

31 N.C. 234, 9 Ired. 234

DEN ON DEMISE OF WILLIAM JORDAN vs. ROBERT MARSH.

A.,by virtue of an order of the County Court, founded on a judgment before-a justice and an execution thereon levied on the 8th of March, 1842, issued a venditioni exponas, bearing teste of May Term, 1842, under which the land oí B. was sold and A. became the purchaser: C. issued a venditioni exponas tested of May Term 1842, pursuing a ft. fa. tested of February Term 1842, under which the same land'of B. was sold and D.became .the purchaser,, and having effected a recovery in ejectment was about to turn B. out of possession, when B. accepted a lease from D. and continued in-possession. Held, that, in an action of ejectment by A, against B., although D. who had been admitted to defend, as landlord could make no de--fence which B. could not have made, yet Bt himself might have given in evidence these circumstances to- rebut A.’s claim to recover, by shewing

D.’s title to be paramount to A.’s and that he (B-.) was D-’s tenant.

Appeal from the Superior Court of Law of Chatham County, at the Spring Term 1847, his Honor Judge-Manly presiding.

In this action of ejectment, the following bill of exceptions was sent up by the Judge of the Superior Court.

On the trial of the issues joined, the counsel for the-plaintiff produced and gave in evidence, in support of the-said issue on the- part of the plaintiff, the record of a judgment in the Court o>f Pleas and Quarter Sessions, whereby it appeared, that one John Edwards obtained, before the 8th day of March, 1842, a judgment before a justice of the-peace of Chatham against Alfred Fleming, upon, whom the declaration was served; that an execution duly issued' thereon., and, for want of goods and. chattels, to satisfy the same, was duly levied upon the premises in the said declaration mentioned on the said Sth day of March, 1842 ; that the said execution and levy with the' w-arrant and other papers relating thereto,, were duly returned to the said Court of Pleas and Quarter Sessions at its May Sessions thereafter, and that such proceedings were had in the said Court afterwards, to-wit: at February Sessions 1843, that the judgment of the justice was confirmed, and an order duly made for the sale of the premises, so levied upon ; that a venditioni exponas issued thereupon, returnable to the May Sessions following, and the said premises were sold on the 9th of May to the said William Jordan, the lessor of the plaintiff’; and the plaintiff’s counsel, in further support of the said issue on his part, produced and gave in evidence to tho jury a deed, duly executed by the sheriff, conveying the premises to the said William Jordan, and proved, that,, at and before the service upon the said Fleming of the said declaration, he was in the possession of the said premises. And thereupon the counsel for the defendant, in support of the said issue on his part, offered to prove,, that at the February Sessions 1842, of the said Court of Pleas and Quarter Sessions, one Amos Brewer duly obtained a judgment against the said Alfred Fleming, and duly caused to be issued thereupon an execution, called' a fieri facias, tested of the said February Sessions, and returnable at the May Sessions thereafter ; that the said execution was duly returned at the said May Sessions; that a part of the moneys specified therein only had been made ; that an alias execution was thereupon issued from the said May Sessions, returnable to the August Sessions', thereafter ; and that the sheriff, under the same, duly sold the said premises on the 2nd Monday of Julj- following, and that at the said sale, the defendant became the pur. chaser; that the said alias execution was duly returned, and a deed made by the sheriff to the defendant for the said premises ; that the said Alfred Fleming, refusing to surrender the possession, the defendant afterwards, to-wit,. on the 19th of day of January, 1844, brought an action of ejectment against the said Fleming in the said Court of Pleas and Quarter Sessions to recover the same : that the said Fleming appeared and was made defendant in •the said suit, and pleaded not guilt}’; and that afterwards, at February Sessions 1S45, a judgment was duly rendered against the said Fleming for the recovery of the possession of the said premises. And the counsel for the defendant further offered, in support of the said issue on his part, to prove, that afterwards, when the said defendant was entitled to have a writ of possession against the said Fleming on the said judgment, and before issuing out the same, the said Fleming agreed to become the tenant of the premises under the said defendant, and accordingly did on the 10th of March, IS45, accept a written lease from the defendant until the 9th of October next thereafter, and gave his note for the rent, and a bond, conditional for the surrender of the premises to the defendant, at the expiration of his term. And the defendant's counsel prayed the judge to admit and allow the said matters to be proved and given in evidence to the jury, as relevant and competent to maintain the said issue on the part of the defendant. But the plaintiff’s counsel objected to the said evidence and insisted, that the defendant, having been admitted a defendant in the room and stead of the said Fleming, and as his landlord to defend his possession, was not entitled to the benefit of any evidence, which should riot in law be admissible on the part of the said Fleming, had he been the party to the said issue : And that in law the said Fleming could not offer such evidence in support of such issue ; rind the Judge being of opinion with the plaintiff’s counsel, refused to allow the matters so offered, on the part of the defendant, to be proved and submitted to the jury, to which opinion and refusal, the defendant by his counsel excepted, and thereupon the Judge, at the request of the defendant’s counsel, hath set his hand and seal to this bill of exceptions, containing the said matters, and it is ordered to be annexed to the said record, this 3rd Monday of March, A. D. 1847, at the Court House of the said County.

There was a verdict for the plaintiff and from the judgment thereon the defendant appealed,

Waddell and 7. II Haughton, for the plaintiff.

Badger, G. W. Haywood and W. II. Haywood for the defendant.

Pearson, J.

The bill of exceptions presents two questions ; was Marsh, who, by order of the Court, was substituted and made defendant in the room and stead of Fleming, entitled to the benefit of any evidence, which would not in law be admissible, on the part of the said Fleming ? It is not necessary to decide this question, because we think there was error in the decision of the second question, and it is sufficient to say, that wrn see nothing to take this case out of the general rule, that a landlord, who is admitted to defend, is confined to such defence as the tenant could have made.

The second question is : was the defendant, supposing him to be confined to such defence as Fleming was in law allowed to make, entitled in'law to rely upon the matters on his part to support the issue? We fully re-cognise the correctness of the general rule, that a purchaser at a sheriff’s sale is entitled to recover in ejectment against the debtor, whose estate he has bought, upon showing a judgment, an execution sale, and sheriff’s deed in pursuance thereof. For having paid his money in satisfaction of the defendant’s debt, he is entitled to whatever estate the defendant owned, and to the possession which he had, and it is right that he should be put into possession, without any contest with the defendant as to the title.

We can, however, see no reason, why, in the case under consideration, Fleming, who had taken a lease and thereby in effect acquired a new possession under a third person, who had brought an action of ejectment and was to turn him out of possession after the purchase by the lessee of the plaintiff, should not be allowed to make de-fence, by showing that the person, under whom he acquired the new possession, had a paramount legal title. I£ he had been put out of possession, and then accepted a lease and entered in pursuance thereof, it would be clear that he could make such defence. For what end, should he be required to go through the useless form of being put out of possession, merely to be at the trouble of going back again ?

A lessee for years, or other particular estate, during the continuance of the estate and while he holds the possession acquired under it, is not allowed to dispute the lessor’s title. After the expiration of the estate, he must give up the possession to him of whom he got it^ before he is at liberty to set up title in himself. When he has done so, he may assert title, either one which existed before he accepted the estate and possession, or one subsequently acquired ; but he cannot do so before, on account of the privity of estate. It would be treachery and bad faith to attempt to withhold possession from him of whom he received it.

There is no reason for applying this doctrine in its fullest extent to a debtor in possession of land sold at Sheriff's sale. He is not the tenant of the purchaser — there is no privity of estate — nor did he receive the possession from him. The rights of the purchaser are sufficiently secured by holding, that he acquired whatever estate the debtor owned and has a right to the possession which he had at the time of the sale. As long as matters remain in statu gao, the debtor’s possession is not adverse, but there is no .treachery or bad faith in his acquiring a new possession under a paramount title in the manner, offered to be proved by the defendant in this case.

Pee Cueiam. Judgment reversed and venire de novo.