Opinion
(December Term, 1851.)
1. The last proviso to the first section of the act of limitations, Rev. Stat., sec. 1, extends to cases where the plaintiff has been nonsuited, as well as to those in which a verdict has been found against him.
2. Where there are several demises of divers persons in the declaration in the first action of ejectment, it is not necessary that a demise from each of those persons should be laid in the declaration in the second action, but it is sufficient for the second declaration to be on the single demise from that one or more of the lessors in the former suit in whom the title is found to have been; for the count on each of the several demises is in law the same as a separate action, and, therefore, the title of each person is saved who was a several lessor in such action.
3. By brining an ejectment, a party then having the right of entry shall continue to have it as long as that action pends and afterwards, also, if within one year afterwards he will bring another action, and so on from time to time — no matter who may be at any time the tenant in possession.
APPEAL from Manly, J., at Fall Term, 1851, of DAVIE. (124)
Gilmer and Miller for plaintiff.
No counsel for defendant.
This suit was commenced 31 August, 1849, and the declaration was on the several demises of Judith Long, and all her brothers and sisters, except Alexander Oaks. On the trial the plaintiff gave evidence that the premises were parcel of a larger tract, of which Thomas Oaks was in possession in his lifetime, and at his death, claiming it as his own; and that after his death the said Judith and Alexander and six others, being the children of said Thomas, continued in possession, claiming under their father. Plaintiff further offered in evidence a deed of bargain and sale in fee, dated 3 July, 1831, for the whole tract, from Joseph Hanes and Michael Hanes to the said eight children of Thomas Oaks, describing them as his heirs, and describing the land as situate, lying and being in the county of Rowan, on the Yadkin River, and bounded by the lands of Nathaniel Markland, Michael Hanes, and J. Ellis, containing 558 acres, more or less, and being the land formerly owned by Samuel Jones. The certificate on the deed on which it was registered is as follows: "Rowan County: August Sessions, 1831. I hereby certify that the within deed was duly acknowledged in open court and ordered to be registered." Signed, "John Giles, Clerk." Its admissibility was objected to by the defendants on the ground of the insufficiency of the clerk's certificate; but it was received. And plaintiff further gave in evidence that a partition was made by commissioners in November, 1831, under a decree of the county court, at the instance of the said Alexander and Judith, and their brothers and sisters, to whom the deed was made, which was returned to November Term, 1831, and there confirmed, recorded, and ordered to be registered; and that therein a certain parcel was allotted to said Judith in severalty as her (125) share of the said lands, and certain other parts to each of the other brothers and sisters, and that the said parties severally took possession of the parcels allotted to them respectively; and the parcel allotted to Judith was, in said partition, described as "lot No. 2, and the tract of land purchased by Samuel Jones of Joseph Sparks, with the following additions and boundaries: Beginning at a mulberry on the river bank, Samuel Jones's old corner; thence along and past his old line to a white oak; thence S. 83 1/2 W. 60 chains to a stake — it being the lower end and remainder of a tract of land purchased by Thomas Oaks, deceased, of Isaac Jones, sheriff, as the property of Samuel Jones." And plaintiff further gave in evidence that the said Judith and one William W. Long intermarried, and being in possession under the partition, they joined in executing a deed of bargain and sale for the premises to the said Alexander Oaks and his heirs, bearing date 21 November, 1839; and that said Alexander entered into the premises, claiming under the said deed, and that the defendants were in possession thereof at the commencement of this suit as the tenants under the said Alexander for a term of years; and that William W. Long died early in 1840; and that the said Judith was never privily examined touching the execution of the said deed by her.
Defendants then gave evidence that Alexander Oaks and those claiming under him had been in the continued possession of the premises from 21 November, 1839, claiming them adversely under the last mentioned deed.
Thereupon plaintiff gave in evidence the record of an action of ejectment against one William J. Markland, which was commenced on 8 May, 1843, in which the declaration was upon the several demises (126) of Judith Long and six other persons bearing the same names with the persons whose demises are laid in the declaration in this suit — each declaration describing the premises by the terms used in the allotment to Judith Long in the partition, in which action Markland appeared and pleaded not guilty, and a verdict was given for the plaintiff; but the same was afterwards set aside by the court and a nonsuit ordered 1 October, 1848. And plaintiff gave further evidence that when the said suit was commenced Markland was in possession of the premises as a tenant under Alexander Oaks for a term which expired; and thereupon Markland left the premises and the present defendants entered as aforesaid.
Counsel for defendants moved the court to instruct the jury that the plaintiff could not recover, because he had not shown the title to be out of the State, and if that were otherwise, because the entry of Judith Long and the other lessors of the plaintiff was barred by the statute of limitations, and if not, because tenants in common or joint tenants cannot maintain ejectment against a cotenant without showing an actual ouster. But the court refused to give those instructions, and informed the jury that the deed from William W. Long and his wife, Judith, one of the lessors of the plaintiff, did not bind her, but conveyed only the husband's life estate, and that upon his death her right of entry accrued, and that she had seven years from that period to enter or bring suit; and that Alexander Oaks and his tenants were estopped by the said deed and partition, and the possession taken under them, to deny the title of the said Judith to the premises, and that this suit was brought in due time after the nonsuit in the first action, to prevent her from being barred by the statute of limitations, provided the two suits were between the same parties and for the same subject-matter; and his Honor left it (127) to the jury to say whether the parties with the same names were the same persons, and whether the matter in controversy was the same; and directed them, if they should think they were, that the plaintiff was entitled to recover on the demise of Judith Long, and in that event it was unnecessary to consider the question whether the action could be maintained upon the other demises. the jury found, accordingly, for the plaintiff, and defendant appealed.
Upon the question of evidence the Court is inclined to the opinion that the clerk's certificate of the acknowledgment of the deed, though very loose, would probably do, since the inferences are fair that it was acknowledged by the bargainors in the county court. But it is not of much consequence in this case whether that deed be admitted or not, for the same estoppels, arising out of the partition. (Mills v. Witherington, 19 N.C. 433), and the deed from the lessor of the plaintiff, Judith Long and her husband, are conclusive as to the title. On this last point, Ives v. Sawyer, 20 N.C. 179, is decisive, as the deed describes the land as that derived by the feme under the partition.
The material question is that respecting the statute of limitations. Under the act of 1715 undoubtedly the right of entry was gone as more than seven years had expired after the husband's death before the present suit was brought, and a nonsuit in a previous action of ejectment, which was brought within the seven years, would not prevent the bar. Morrison v. Conolly, 13 N.C. 233. But in revising the statutes in 1836 the act of 1715 was amended by adding a further proviso, "that if in an action of ejectment judgment be given for the plaintiff and (128) be reversed for error, or a verdict pass for the plaintiff and judgment be arrested, or a verdict be given against the plaintiff, the party plaintiff, his heirs or executors, may commence a new action or suit, from time to time, within one year after such judgment, reversed or judgment given against the plaintiff." This provision was imported from section 4, where it stands as a proviso, enlarging the time for bringing personal actions, and is obviously expressed inartificially in reference to a right of entry or an action of ejectment. No doubt it was intended to take the place of St. 4 Anne, ch. 16, sec. 16, which enacted "that no claim or entry should be sufficient, within the St. 21 Jac., unless an action should be commenced within one year and prosecuted with effect." the object of that enactment was to prevent an evasion of the Statute of James by making an actual entry just before the expiration of twenty years, and thereby getting twenty more, and so on perpetually; which was effected by enlarging the time of entry for only one year after an entry within twenty years, provided it was followed by an effectual suit brought within the year, but not afterwards. That was not reenacted in 1836, and of course is not the law now; but instead of it the proviso now under consideration was adopted, which is so differently expressed as to require a different construction in order to carry out the legislative intention. As applied to this case, the opinion of the Court is that it entitles the plaintiff to recover. Although a nonsuit is not mentioned as one of the modes of determination of the first suit, yet it would be within the equity of this proviso upon the same principle on which it was held to be within that in section 4, were the two expressed precisely alike. But the proviso to section 1 goes further than the other in this: that it applies to this case the rule that (129) a judgment in one ejectment is not a bar to another, and allows the plaintiff, as the lessor of the plaintiff is called, to bring a second ejectment within a year after a verdict and judgment against the plaintiff in a former action. It follows that, a fortiori, he may do so after a nonsuit.
Then it is to be further considered in reference to the subject-matter and the parties to the two suits. As to the former, there can be no question in this case. the description of the premises demanded in the two declarations is the same, and the jury found the identity. No doubt the lessor or lessors of the plaintiff must be the same in both actions, or their representatives must take their places. But when there are several demises of divers persons in the first declaration, it cannot be necessary that a demise from each of those persons should be laid in the second, but it must be sufficient for the second declaration to be on the single demise of that of one or more of the lessors in the former suit in whom title is found to have been; for the count on each of the several demises is in law the same as a separate action, and therefore the title of each person is saved who was a several lessor in such action. For the object is to preserve the right of any person having it at the time of instituting an action on his title; and it ought not to harm the true owner that the declaration sets forth separate demises of others, provided each declaration has a count on the demise of the true owner. Such is this case. For the demise of Judith Long is the only one on which the verdict is given for the plaintiff, and under the instructions and evidence it must be understood that the jury found the title to have been in her alone at the bringing of the first suit.
Upon the necessity of the identity of the defendant in the two actions, the opinion of the Court differs somewhat from that given to the jury, but not so as to affect this judgment. If it were true that this proviso, like that in the fourth section, had in view only the case of the same defendants in both actions, it yet might fairly be construed (130) to embrace the case of outgoing and incoming tenants of the same landlord. But there seems to be no ground for any such restriction, nor any reason why, after an action brought against the actual occupiers at the time, another action, upon failure of the first, should not lie within a year against the actual occupier at the time, whoever he may be. If it were not so, then in every case in which the seven years had expired pending the action, the defendant, by afterwards aliening to another, or even by vacating the possession, would defeat the proviso and bar the right of entry. So, if an action within the year would not lie against a stranger who entered when the possession was vacant, there would be the absurdity that he could insist on the possession of a former tenant as a bar, which the former tenant himself could not set up had he continued in possession. Such consequences forbid a construction which produces them, and they show the true principle of the enactment to be that by bringing ejectment a party then having the right of entry shall continue to have it as long as that action pends, and afterwards also if within one year afterwards he will bring another action, and so on from time to time. That is the clearer when it is considered that this enactment is in the form of a proviso to a general enactment in the beginning of the section, which bars the right to enter into lands but within seven years after the right accrued; and, therefore, that its office, like that of previous provisos respecting persons under incapacities, is to extend the right of entry to the period prescribed in it. Besides, in giving the second action of ejectment, the proviso implies that the lessor of the plaintiff therein has the right of entry at the time of suit brought. If he has it at all he may assert it either by entering on any person unlawfully in possession or by bringing an ejectment. The (131) Court is well aware of the consequence of this construction, as it leaves the right of entry without limitation, if the party entitled will bring an ejectment within seven years, and successive actions afterwards within a year after a verdict even against him in a prior suit. But the terms of the act and the nature of the rights on which it operates render it the unavoidable construction, and if it prove a mischief it is not for the judiciary but the Legislature to apply the corrective by adopting a provision similar to that in the Statute of Anne, or requiring the second or some certain one of the actions to be prosecuted with effect or in some other way giving the repose to which long possessions are entitled, in policy and justice.
PER CURIAM. Affirmed. Cited: Williams v. Council, 49 N.C. 211; Freshwater v. Baker, 52 N.C. 256; Prevatt v. Harrelson, 132 N.C. 254; Locklear v. Bullard, 133 N.C. 265; Trull v. R. R., 151 N.C. 540; Weston v. Lumber Co., 162 N.C. 192; Quelch v. Futch, 174 N.C. 396.
(132)