Opinion · Nclaw North Carolina
THOMAS v. ORRELL, 27 N.C. 569 (1845)
DOE EX DEM. JOHN.W. THOMAS v. JOHN ORRELL., 27 N.C. 569 (N.C. 1845)
- Type
- Opinion
- Court
- Nclaw North Carolina
- Jurisdiction
- Nclaw
- Date
- 1845-01-01
- Topic
- general
THOMAS v. ORRELL, 27 N.C. 569 (1845) DOE EX DEM. JOHN.W. THOMAS v. JOHN ORRELL.Supreme Court of North Carolina (June Term, 1845.) 1.
Citator
UpLaw has not yet analyzed THOMAS v. ORRELL, 27 N.C. 569 (1845). The absence of a flag is not a finding that it is good law.
THOMASv. ORRELL,27 N.C. 569(1845)
DOE EX DEM. JOHN.W. THOMAS v. JOHN ORRELL.
Supreme Court of North Carolina
1. A person who was in apparent possession of a tract of land when it was sold by the sheriff under an execution against him, and in like possession when an action of ejectment was brought against him, cannot, after entering a defense to the action, be permitted to allege that others, who were also in possession, had both the title and the sole possession.
2. If the person thus sued meant to disavow any possession in himself, he should not have entered any defense.
3. Upon a judgment by default against a casual ejector, if it be shown to the court that there are other persons in possession, holding differentPage 398parcels in severalty, judgment will not be allowed for the whole tract sued for, but only for the part of which the person was in possession on whom the declaration was served.
APPEAL from DAVIE, Spring Term, 1845;Bailey, J.
Ejectment. The title of the lessor of the plaintiff was a purchase and a conveyance of the premises from the sheriff, upon judgments and executions against the defendant, who was in possession of the premises at the time of the sheriff's sale, and also when this suit was commenced.
The defendant offered to prove that before the judgments rendered he had sold and conveyed the land to his two sons, one of whom lived in the house in which the defendant resided, and the other (570) occupied a separate and distinct portion of the tract, and that, in truth, the possession of the lands, as well as the title, was in the sons at the time of the suit brought. But the court refused to receive the evidence, and the jury returned a verdict for the plaintiff, and from the judgment the defendant appealed.
Clemmons for plaintiff.Boyden for defendant.
RUFFIN, C. J.
It being admitted that the defendant was actually an occupant of the premises, that is sufficient to sustain this action against him. The offer to give evidence of the possession of the sons, under the defendant's conveyance, was but a covert attempt to elude the rule that, in ejectment by the purchaser at sheriff's sale against the debtor himself, the latter cannot set up a title out of himself. If he meant to disavow any possession in himself, why did he defend? If the defendant had not defended, but it had been shown to the court that there were other persons in possession, holding different parcels in severalty, judgment would not have been allowed for the whole against the casual ejector, but only for the part of which the person was in possession on whom the declaration was served. Bul. N. P., 98. But after having defended for the whole, and when it is clear that the defendant is, at best, one of the possessors, it is no excuse to him to say that there are others also in possession. If the others be in possession, as he alleges, they cannot be prejudiced by the judgment against the present defendant, for every plaintiff in ejectment takes possession, as he alleges, they cannot be prejudiced by the judgment against the present defendant, for every plaintiff in ejectment takes possession at his own risk, and must take care not to take more than he is entitled to, nor to turn out persons who have the title, on which there has been no judicial decision. The lessor of the plaintiff can, of course, have the defendant put out of the premises; but he will enter, himself, at the hazard of being a trespasser on the sons, providedPage 399they really are entitled to the land. If he wished to bind them by the judgment in this action he ought to have served them also with a copy of the declaration. As he did not, the sons are still at liberty to assert their title against the lessor of the plaintiff; but the defendant has no right to assert it for them, or rather, to set (571) up their title and their possession with them to protect himself from being evicted.
PER CURIAM. No error.Cited: Judge v. Houston,34 N.C. 112,114,115;McClennan v. McLeod,75 N.C. 65;Edwards v. Phillips,91 N.C. 358.