Opinion · Supreme Court of North Carolina

Doe Ex Dem. Gorham v. Brenon

Doe Ex Dem. Gorham v. Brenon, 13 N.C. 174 (N.C. 1829)

Type: Opinion
Court: Supreme Court of North Carolina
Jurisdiction: North Carolina
Date: 1829-06-05
Topic: general

Henderson, Chief-Justice. I think that the presiding Judge was right in all bis positions; first, as to the want of an issue between the Plaintiff and the Defendant Mooring. When the latter, upon his own motion, was made Defendant after issue joined between the Plaintiff and the other Defendant, and offered no new or additional plea, he very clearly adopted her defence and her pleas. Secondly, as to the advice, which the Defendant called on the Court to give to the jury, that the lessor of the Plaintiff took no estate by his deed from the. Sheriff, I also think that the Judge was right.

Citator

UpLaw has not yet analyzed Doe Ex Dem. Gorham v. Brenon. The absence of a flag is not a finding that it is good law.

Cited by: 4 opinions

GORHAMv. BRENON,13 N.C. 174(1829)

JOHN DOE, ex dem. of FRANKLIN GORHAM, v. CATHARINE BRENON and

JESSE H. MOORING.

Supreme Court of North Carolina

(June Term, 1829.)

FROM PITT.

1. Where one, upon his own motion, procures himself to be made a defendant to an ejectment brought against another, and offers no new plea nor evidence of title in himself, it is presumed that he adopts the plea and defends the title of his co-defendant.

2. Although the plaintiff in ejectment is bound to prove the person whom he makes defendant to be in possession, yet where one procures himself to be made a defendant, the plaintiff is not bound to prove him in possession; and if such a voluntary defendant is proved not to be in possession, the plaintiff is, notwithstanding such proof, entitled to a verdict.

3. A widow who continues the possession of her husband is bound by an estoppel which would bind him were he alive.

EJECTMENT originally commenced in the County Court, at May Term, 1823, against the defendant Brenon alone. At November Term, 1824, of the County Court, Mooring, upon his own motion, was made a defendant.

On the trial before his Honor, Judge NORWOOD, on the last fall circuit the lessor of the plaintiff produced a judgment and execution against John Brenon, and a sheriff's deed to him for the premises in dispute. He then proved that John Brenon died in possession of the land, and that the defendant, Catherine, was his widow, and it was admitted that she continued the possession as his widow upon his death, until her own, which happened during the pendency of the suit. There was no otherPage 109evidence of title in the plaintiff. The death of Catherine Brenon was suggested at March Term, 1827, but there was no entry of the abatement of the suit, nor of the award of process, to make her heirs parties; neither was there any entry of a plea by the defendant, Mooring, at the time he was made a party.

The defendant, Mooring, had never been in possession of the premises, and offered no testimony. His counsel moved his Honor to strike the suit from the record, there being no issue in it since (175) the death of Catherine Brenon, but his Honor overruled the motion. The counsel for the defendant then moved his Honor to instruct the jury that there was no evidence of title against the defendant, Mooring, and to direct that he plaintiff should be nonsuited. But his Honor instructed the jury that if defendant Brenon continued the possession of her husband and the defendant, Mooring, came in and defended her title and possession, he was estopped to deny the title of the lessor of the plaintiff. A verdict being returned for the lessor of the plaintiff, the defendant Mooring appealed.

The case was submitted without argument.

Gaston, for the lessor of the plaintiff.Hogg, for the defendant.

HENDERSON, C. J.

I think that the presiding Judge was right in all his positions — first, as to the want of an issue between the plaintiff and the defendant Mooring. When the latter, upon his own motion, was made defendant after issue joined between the plaintiff and the other defendant, and offered no new or additional plea, he very clearly adopted her defense and her plea. Secondly, as to the advice which the defendant called on the Court to give to the jury, that the lessor of the plaintiff took no estate by his deed from the sheriff, I also think that the Judge was right. For, as the widow of Brenon, who it is admitted continued the possession of her husband as his widow, and showed no other estate, she was estopped to say that nothing passed by the sheriff's deed. Her husband, whose possession she continued, being defendant in the execution, would have been estopped to make such allegation, had he been alive, and what is an estoppel upon him is equally so upon her. The defendant Mooring, coming in on his own motion, and never having been in the actual possession, must be taken as defending (176) her possession upon her title, he neither showing nor attempting to show title or possession in himself. The decision of the old Supreme Court, inAlbertson v. Redding,4 N.C. 28;S. c.,6 N.C. 283. That the plaintiff must show the defendant is in possession, notwithstanding the defendant enters generally into the common rule, I think, does notPage 110govern this case. There the defendant is called into Court by the plaintiff, and upon the plaintiff's allegation that he is in possession. Here the defendant, of his own motion and free will, comes in, and admits himself in possession with the defendant already in Court, and who is shown to be in possession. In this case the defendant Mooring would not be entitled to a verdict, if it was shown on his part that he never was in possession. Much less is the plaintiff bound to prove it.

So for as regards the plaintiff's deed passing the estate by estoppel against the defendant in the execution, it has long been considered the law in this State, both in this Court and on the circuits, although formerly, it was held otherwise; and that the widow continuing her husband's possession as widow, and showing no title, is bound by estoppel of her husband, was ruled inBufferlow v. Newsom,12 N.C. 208, in this Court.

PER CURIAM. Affirmed.Cited: Duncan v. Duncan,25 N.C. 318;Davis v. Evans,27 N.C. 531,532;McDowell v. Love,30 N.C. 504;Atwell v. McClure,49 N.C. 376;Wilson v. James,79 N.C. 352.