Demise of Grandy v. Bailey, 35 N.C. 221, 13 Ired. 221 (1851)

Dec. 1851 · Supreme Court of North Carolina
35 N.C. 221, 13 Ired. 221


A widow, continuing in possession of land, is estopped to deny tile title derived under her husband's deed.

One may be equally estopped, as to two adverse claimants, so as to be concluded when sued hv either.

Thus where a widow in possession claiming dower was estopped by deed given by her husband, she cannot remove the estoppel and defeat the bar-gainee, by giving up her possess'»!) to one claiming under a fi. fa. prior to the deel, and then immediately resuming the possession under him.

The cases of Buffalow v Newsom. 1 Dev. 208, and Williams v Bennett, 4 Ire. 122, cited and appr ved, and the case of Jordan v March, 9 Ire. 231, commented on and approved.

Appeal from the Superior Court of Law of Pasquotank County, at the Fall Term, 1851, his Honor, Judge Settle presiding.

*222John Bailey was seized in fee of the premises, and, on the 7th day of January, 1843, he conveyed them by deed of bargain and sale to Reuben Overman, one of the lessors of the plaintiff, upon trust to sell, and with the proceeds pay certain debts. Bailey continued in possession, with the consent of Overman, until his death in 1850: and the de~ . fendant who is his widow, continued in possession after-wards, and, in December, 1850, she hied a petition against the heirs of heríate husband for dower in the premises, and it was adjudged and laid off to her, and the report, confirmed the first Monday in March, 1851. On the 5th of March, 1851, Overman sold and conveyed the premises to John J, ■Grandy, the other lessor of the plaintiff, and, upon the defendant’s refusing to let him into possession, this action was brought on the 9th of April following.

On the part of the defendant, evidence was offered, that a judgment was obtained by John C. Ehringhaus against John Baily, in March, 1830, and a fieri facias was then issued thereon, and levied on the premises, and that writs of venditioni exponas issued thereon regularly, until the premises were sold under one of them, in March, 1844, to. the said Ehringhaus, who took a deed from the Sheriff.— And the defendant offered further to prove by one Mathews, that a public road ran through the premises, near to the house in which the defendant dwelt, and that, on the 28th of March, 1850, he, as agent for Ehringhaus, went to the premises, and that the defendant locked the door of the house, and brought the key out to the road, where he was and then delivered it to him, saying, she surrendered up the possession of the premises to him, as the agent of Eh. ringhaus, and that then he re delivered the key to her, and told her to keep possession as tenant of his principal, and she went back into the house.

The counsel for the plaintiff objected to receiving the *223evidence on the ground, that the defendant was estopped to show the title out of her late husband. But the Court admitted it, and thereupon told the Jury, that, if they believed the facts deposed to by Mathews, the plaintiff could not recover. The defendant had a verdict and judgment, and the plaintiff appealed.

Smith, for the plaintiff.

Heath and Ekmngkaus, for the defendant.

Ruff ik, C. J.

The cases of Bufferlow v Newson, 1 Dev. 208, and Williams v Bennett, 4 Ire. 122, establish, that a widow, continuing in possession, is estopped to deny the title derived under her husband’s deed. So that the question is, whether she was discharged from that estoppel by what passed between her and Ehringhaus. The Court is of opinion that she was not. It was argued that she was equally estopped, as between herself and each of the other parties, and, therefore, must be at liberty to rely on the better title. But that does not follow.' For, one may be equally estopped as to two adverse claimants, so as to be concluded, when sued by either: as if a tenant of A take a lease from B ; so, it would seem, it must be also upon the modem rule, which is called an estoppel, but is founded on the necessity of enforcing good faith on the part of one in possession under another’s title, and has been applied in favor of a person claiming under a Sheriff’s sale or deed of trust, against the debtor m execution, or the maker of the deed, and those subsequently claiming under him. If there be adverse claimants under different Sheriff’s sales or conveyances, good faith requires the party, and his heirs or widow, to stand indifferent between them, and not to defend the possession kept by them under an arrangement with either of the parties. Supposp, for example, that one pur*224chases under execution against A, and the other claims under a prior deed, that was fraudulent against creditors, certainly. in a suit by the latter against A, he could not protect his possession by alleging his own iraud, and that, in consequence thereof, the purchaser irom the Sheriff had the better title, and he had agreed to hold under him. That is a controversy, which, in, good faith, he ought to leave exclusively to those claimants. — Standing in the relation he bears to both of them, he ought not to make himself a party to it: because he cannot do so, without, in some degree, depriving one or the other oí the absolute right he has to claim the possession, as against him. it was, however, contended at the bar, that the case of Jordan v Marsh, 9 Ired. 231, is to the contrary. But the case was not intended to impeach the genera! rule, and it was so stated by the Court. On the contrary, the circumstances there were very special, and authorised the exception then made. One of the purchasers at Sheriff's sale had recovered m ejectment, and no imputation of fraud therein was made: And he was on the eve of taking actual possession under a writ of haberi fa-cías, when the tenant took a lease from him. The Court was of opinion, that if the tenant had been actually put out of possession by the Sheriff, and had afterwards entered under a new lease, he might have defended such new possession, under the title of his landlord, against a subsequent ejectment by the other purchaser from the Sheriff; and, therefore, it was held, that he might take a lease from him, who had recovered in the ejectment, without an actual eviction oil a writ of possession — the Court saying, “for what end should he be requited to go through (he useless form of being put out of possession, merely to be at the trouble of going back again ’’ The decision proceeded on the manifest bona jides of the transaction, following ¡he determination of the question of title in the ejectment, by which *225means the writ of possession was but a formality. It was, therefore, a peculiar case, and is not applicable to the present; for this defendant as manifestly resorted to a contrivance for changing her relation to the lessors of the plaintiff, without any actual change of her possession. The trustees’ sale had just been made, and her own dower just assigned, and the conclusion is irresistible, that she went through the pretence of giving up the possession, without actually doing so, for the sake of defeating the purchaser from the trustee, by defending her old possession under color of Ehringhaus’ claim. It was surely erroneous to assume, that the transaction was bona fide, and tantamount to an actual departure from the premises, and then getting a new possession under a bona fide lease.

Per Curiam. Judgment reversed, and venire de nave.