Doe on demise of Sinclair v. Worthy, 60 N.C. 114, 1 Win. 114 (1863)

June 1863 · Supreme Court of North Carolina

60 N.C. 114, 1 Win. 114

Doe on demise of D. M. SINCLAIR v. K. H. WORTHY.

In ejectment a landlord, who is permitted to defend the suit in the place of his tenant, is confined to the same defense as his tenant would have been confined to.

In an action of ejectment against the debtor by a purchaser at sheriff’s sale, the defendant need only a judgment, execution and sheriff’s deed.

There is no principle of law or practice of the courts by which,' after a plaintiff, in ejectment, has obtained a judgment against the tenant in possession, upon whom a declaration has been served, he can be deprived of the fruits •of his judgment by an order to stay the writ of possession on the suggestion that the title was in some other person.

AotioN OK ejectMEft, tried before Ebenoh, J., at the Eall Term, 1860, of Moore Superior Court.

The declaration was served on Duncan Murchison, Leonard Farr and Henry Oldham, and at the appearance term, K. H. "Worthy was permitted to come in as landlord and defend the suit. The lessor of the plaintiff offered in evidence a judgment and execution against Duncan Murchison, a levy and sale in 1857, of the land described in the declaration, a purchase by him for fifteen ($15) dollars, and a sheriff’s deed for the same. The defendant then showed a sale by the sheriff for the same land as the property of Duncan Murchison, and a purchase of it by him for $2000, in July, 1856, and a sheriff’s deed to him of that date, reciting a judgment and execution against Duncan Murchison, and a sale to him, and showed that a short time after the sale, Duncan Murchison agreed with the defendant, that if he, the defendant, would not turn him out of possession, he would hold the- land as his (defendant’s) tenant, and Murchison then became his tenant and held the land of him until his death, in 1857, and was so holding the land when the? plaintiff purchased, and at the time of the service of the declaration, and that defendant had been in possession, by himself, or his tenants, from the time of his purchase, in 1856, up to the time of the trial. The Court charged the jury, that as the lessor of the plaintiff had showed a judgment and execution against Duncan Murchison, upon whom the declaration was served, a levy and sale, a purchase by the lessor of the plaintiff and a sheriff’s deed, the plaintiff was entitled to their verdict, and that in this action it could avail the defendant nothing to show title to the land sued for. Defendant’s counsel excepted. Verdict for plaintiff, and judgment and appeal by the defendant.

The record proper sets out that plaintiff moved for a writ of possession to issue, which was opposed'by the defendant, upon affidavits filed, which were considered by the Court sufficient, and he moved that the writ of possession should be stayed until the lessor of the plaintiff should bring his action of ejectment against the present defendant, and until the termination of sueh action. This motion was sustained on condition that the- defendant, in the future action, should admit possession of the premises,, from which order,, the plaintiff' appealed..

Ilaugliton, for the plaintiff

Strange, McDonald and W. McL McKay,.for defendant-

PbaesoN, C. J.

From the manner in which the- record is-made out, we are at a loss to determine whether this is an appeal by the defendant from the ruling of his Honor on the trial of the action of ejectment, or an appeal by the plaintiff' from the order staying the writ of possession until the lessor of the plaintiff should bring-his-action of ejectment against the defendant. But for the fact,, that the case, madfe out by his Honor, is sent as part of the record, we should conclude-that the only point, presented, was on- the- appeal of the plaintiff, in regard to the- motion to- stay the writ of possession, and that the confusion is to be ascribed to an attempt on the part of the elerk to insert the proceeding in respect to the order-staying the writ of possession, as of fall term, 1860. We-will take it,, however^, that both matters are brought up for review.

There is no error in the ruling of his Honor on the trial of the action of ejectment- The-facts bring this- case within the-doctrine, that when a landlord defends in place of his- tenant,, he can make only such defense as his-.tenant could rhake, and-' that in an action of ejectment by a purchaser at sheriff’s sale-against the debtor, in the execution, he need only show a judgment execution and sheriff’s deed. This is the general rule, and the case does not come within the exception, made-under the peculiar circumstances presented in Jordan v. Marsh, 9 Ired. 234, so we conclude with his Honor, that the plaintiff was entitled to- recover.

But we do- not concur with him in bis holding on the motion to stay the writ of possession. We are not aware- of any principle of law or practice of the courts by which*. after a-plaintiff,.in ejeetment, has obtained judgment against tbe ,tenant in possession, upon whom the declaration in ejectment has been duly served, he can fee deprived of the fruits of his judgment by an order to stay the writ of possession, on a sug-guestion that the title is in some other person. We were informed, on the argument, that his Honor supposed the order, to,stay the execution, was warranted by the opinion in the case of Judge v. Houston, 12 Ired. 108. Such a conclusión was not warranted by that opinion, and shows that it w.as totally misapprehended. In that case, the declaration, in ejectment, was not duly served on ithe tenant in possession, but was serv■ed on one who was only ® guest or servant of the persons really in possession, and it was held that the latter, who had received no notice o.f the action, and had no right or opportunity of making defense, should not be turned out of possession under a judgment obtained against the gnest or servant., But in this case the declaration was served on the person realljg im, possession j so the opiuion in that case had not the slightest application.

We are glad of an opportunity to correct the misapprehension, for, if the practice should prevail of staying the writ of possession, in all cases, where the land-lord defends in place of his tenant, the rule that he is confined to such -defense as his tenant could make, and that 'a purchaser at sheriff’s sale, as against the debtor in the .execution, need only show a judgment execution and sheriff’s -deed, would be completely eluded.

Pee CueiaM, Judgment in the action of ejectment eon- , firmed. The order staying the writ of-possession reversed.