Opinion
(December Term, 1851.)
1. A widow, continuing in possession of land, is estopped to deny the title derived under her husband's deed.
2. One may be equally estopped as to two adverse claimants so as to be concluded when sued by either.
3. Thus, where a widow in possession claiming dower was estopped by deed given by her husband, she cannot remove the estoppel and defeat the bargainee by giving up her possession to one claiming under a fi. fa. prior to the deed, and then immediately resuming the possession under him.
(222) APPEAL from Settle, J., at Fall Term, 1851, of PASQUOTANK.
Smith for plaintiff.
Heath and Ehringhaus for defendant.
John Bailey was seized in fee of the premises, and on 7 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 defendant, who is his widow, continued in possession afterwards; and in December, 1850, she filed a petition against the heirs of her late 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 5 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 9 April following.
On the part of the defendant evidence was offered that a judgment was obtained by John C. Ehringhaus against John Bailey, 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 28 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 Ehringhaus, and that then he redelivered the key to her and told her to keep possession as tenant of his principal, and she went back into the house.
Counsel for plaintiff objected to receiving the evidence on the (223) ground that the defendant was estopped to show 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.
Bufferlow v. Newson, 12 N.C. 208, and Williams v. Bennett, 26 N.C. 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 modern 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 in 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. Suppose, for example, that one purchases under execution against A. and the (224) 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 fraud, and that in consequence thereof the purchaser from 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 of the absolute right he has to claim the possession as against him. It was, however, contended at the bar that Jordan v. Marsh, 31 N.C. 234, is to the contrary. But the case was not intended to impeach the general rule, and it was so stated by the Court. On the contrary, the circumstances there were very special, and authorized the exception then made. One of the purchasers at sheriff's sale had recovered in ejectment, and no imputation of fraud therein was made. And he was on the eve of taking actual possession under a writ of haberi facias, 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 on a writ of possession, the Court saying, "For what end should he be required to go through the 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 fides of the transaction, following the determination of the question of title in (225) the ejectment, by which means the writ of possession was but a formality. It was, therefore, a peculiar case, and is not applicable to the present, for this defendant has 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. Venire de novo.
Cited: Freeman v. Heath, post, 500, 501; Gilliam v. Moore, 44 N.C. 97; Page v. Branch, 97 N.C. 100; Love v. McClure, 99 N.C. 295; Atwell v. Shook, 133 N.C. 393.