Posten v. Henry, 34 N.C. 339, 12 Ired. 339 (1851)

Aug. 1851 · Supreme Court of North Carolina

34 N.C. 339, 12 Ired. 339

ROBERT POSTEN vs. ROBERT HENRY.

A purchaser of land is a privy in estate with the bargainor, and has the right, where necessary, to use the name of the bargainor to effect a recovery in ejectment, and, also, to take possession in his name.

Appeal from the Superior Court of Law of Buncombe County, Special Term, July 1851, his Honor Judge Bailey presiding.

This was trespass for mesne profits. The plaintiff read in evidence the record of a recovery in ejectment.— The declaration contained three .counts upon the several demises of the plaintiff, of Rebecca Posten, and of George W. Jones. At the trial, the issue on the demise of the plaintiff was alone submitted to the jury. The writ of possession recited a recovery on the demise of the plaintiff. — • Under it the sheriff put George W. Jones in possession; and afterwards this action was brought. To show a privity of estate between the plaintiff and said Jones, and that the latter had authoi'ity to take possession in the name of the plaintiff, a judgment, execution, and sheriff’s deed were read in evidence, from which it appeared, that the land had been sold by the sheriff, as the property of Posten, and was bought by, and conveyed to, the said Jones. The sale was made in 1844. The deed was executed in 1847.

A deed from the plaintiff to Jones, executed in 1834, was also read in evidence. It is an ordinary deed of bargain and sale, for the consideration of six hundred dollars. At the foot of this deed is a memorandum, that Jones is to have “ full possession” at the death of Rebecca Posten.

The Court was of opinion, that the plaintiff had not made out his case, because there was no evidence of an entry by him after the recovery in ejectment. The plaintiff submitted to a non-suit, and appealed.

N. W. Woodfin, for the plaintiff.

J. Baxter and Henry, for the defendant.

Pearson, J.

When this case was before us at August Term, 1850, it was decided against the plaintiff, upon the ground, that no connection had been shown between him and Jones. We think that objection is now fully met by the two deeds, which were read in evidence. By them Jones is made a privy in estate with the plaintiff; and this case is the ordinary one of a purchaser, who brings ejectment, on the demise of the bargainor, to obviate an objection, on account of an adverse possession at the execution of the deed.

The bargainee is a privy in estate, and has the right to use- the name of the bargainor to effect a recovery, and to take possession in his name.

Per Curiam. Judgment reversed, and venire de novo.