Price v. Osborne, 34 N.C. 26, 12 Ired. 26 (1851)

June 1851 · Supreme Court of North Carolina

34 N.C. 26, 12 Ired. 26

DOE ON DEMISE OF DAVID PRICE vs. LOUISA OSBORNE.

jtVhere A. had leased land to B. for the year 1848, and during the year 1848, while B. was in possession under the lease, A. executed to C. a deed purporting to convey to him the fee simple, and thereupon, C., on the 25th of December, 1848, commenced an action of ejectment against B.; Held, that the action would not lie, because at the date of the demise, C. had not the right of entry.

Appeal from the Superior Court of Law of Rockingham County at the Spring Term, 1851, his Honor Judge Bailey presiding.

• In this case tfie.ev-idence was, that the lessor of the plaintiff purchased the land, in dispute, as the property of Robert L. Osborn, husband of the defendant, at November Term, 1847, of Rockingham County Court, at sheiiff s sale, took a sheriff’s deed and bad the same duly recorded : That before Christmas, 1847, the lessor leased the said land to the said Robert L. Osborn, for the year 1848: That the-said Robert held over, and lived with the defendant; his wife, on the land, until the 5th day oí May, 1849, when the said husband died, and that the defendant, his widow, continued on the land until after she was served with a copy'' of the declaration in this case.

A verdict was rendered for the plaintiff, subject to the opinion of the Court, whether in case the said Robert L. Osborn, the husband, rented the land for the whole of the-year 1848, the demise as stated in the declaration being on-the 25th of December, 1848, and the ejectment being stated on the first day of January, 1849, the plaintiff could recover.

The Court being of opinion with the defendant, on the-point reserved, set aside the verdict, and ordered a non-suit.. From which judgment of non-suit, the lessor of the plaintiff prayed and obtained an appeal to the Supreme Court.

J T. Morehead, for the plaintiff.

Kerr, for the defendant.

Nash, J/

We concur with his Honor, before whom the-case was tried, and in the judgment he gave. The demise in the declaration is laid on the 25th of December, 1848. In the latter part of the year 1847, David Price, the lessor of the plaintiff, and who was the owner of the land, leased it to Robert L. Osborn tor the year 1848. Osborn entered into possession, and continued it during the whole of that year, and until some time in 1849, when he died, and the-defendant, his widow, continued on the land. On- the 26th of December, 1848, the date of the demise, R. L. Osborn, the lessee, was in possession of the premises, under his unexpired lease. His possession was a lawful one, and David Price, the lessor, had no right of entry, and without such right he could make no lease to the plaintiff. In ejectment, the lessor of the plaintiff must recover, upon the strength of his own title ; he must show a good title to the premises, and a right of entry vested in him at the time of the demise, otherwise he cannot recover. Brown ou actions, 466 — 1st Chit. PI. 880 — 2 Fast 250 — 13th East R. 210, 212.

Per Curiam. Judgment affirmed.