Opinion
July Term, 1827.
From Northampton.
1. A widow remaining in possession, as widow, of lands occupied by her husband in his life, is bound by an estoppel which bound her husband.
2. A jury is bound by an estoppel, and the court will disregard a finding contrary thereto, except where the party entitled to the estoppel has waived it by mispleading.
EJECTMENT, tried before Ruffin, J., when a verdict was taken subject to the opinion of the court upon the following case:
Seawell for the appellant.
Badger contra.
One Jesse Webb, being seized and in the actual possession of the premises in dispute, on 16 March, 1817, conveyed to one John D. Amis in fee, upon trust to sell and pay a debt due to one William Amis, if Webb should fail to pay. On 30 October, 1820, Webb having fully paid the debt, William Amis executed to him a release of the same, and also of all claim to the land. No sale or conveyance was ever made by J. D. Amis, and Webb continuing in possession with the consent of both William and John, on 30 September, 1820, sold and conveyed to the lessor of the plaintiff in fee simple, with general warranty. After this sale and conveyance Webb still continued in possession of the land by leave of the lessor of the plaintiff (though without any formal or express lease for any particular time), and cultivated it until March, 1821, when he died. Mary, the widow of Webb, after his death remained (without (209) any allotment of dower), with the other members of his family, in possession, setting up no other title than such as she had under her husband, until November, 1823, when she intermarried with the defendant Newsom, who thereupon, as her husband, entered into possession, setting up no other title than that of his wife.
Upon this case it was agreed, if in the opinion of the court the defendant was estopped to set up the outstanding legal title in John D. Amis to defeat the action, then the verdict to stand; otherwise the verdict to be set aside and a nonsuit entered.
The presiding judge was of opinion with the plaintiff, and from the judgment rendered upon the verdict the defendant appealed.
The defendant is doubly estopped from showing title in John D. Amis, first by the deed of Jesse Webb to the lessor of the plaintiff. The widow is estopped by her husband's deed, for she is tenant to the heir, who is estopped, and the tenant is always bound by an estoppel on his landlord, when his title is derived after it arises. She is also estopped by matter in pais; her husband, after his conveyance to the lessor of the plaintiff occupied the lands as tenant at will or sufferance under the lessor; he could not, therefore, dispute his landlord's title. Upon his death, the widow succeeded to the possession, accompanied by the estoppel, as she could not succeed to her husband's possession stripped of its incidents, one of which was that he could not dispute his lessor's title. The defendant, upon his marriage with the widow, succeeded to her possession in the same manner in which she held. The judge was therefore correct in disregarding the facts showing title in John D. Amis; and although it is said that a jury is not estopped, but may find the truth, that is only in such (210) cases where the party has waived the estoppel, as, when having an opportunity to plead and rely on it, he omits to do so, but relies on the real fact. Trevivan v. Lawrence, 1 Salk., 276. In this case, from the nature of the action, he could not plead it; he shall therefore have the same advantage on the evidence as if he had pleaded and relied on it. It is not intended to impugn the rule that in an ejectment the lessor of the plaintiff recovers by the strength of his own title, and not by the weakness of his adversary's. In this case the evidence which shows his title to be weak, to wit, that the title is in John D. Amis, is excluded by the estoppel, and if offered and found by the jury, must be disregarded, for the estoppels (the admission of the parties) appear also.
PER CURIAM. Judgment affirmed.
Approved: Gorham v. Brenon, 13 N.C. 174; Norwood v. Marrow, 20 N.C. 586; Williams v. Bennett, 26 N.C. 122; Grandy v. Bailey, 35 N.C. 221; Wilson v. James, 70 N.C. 350; Love v. McClure, 99 N.C. 290; Atwell v. Shook, 133 N.C. 392.