Opinion
(June Term, 1863.)
1. In ejectment a landlord who is permitted to defend the suit in the place of his tenant is confined to the same defense as his tenant would have been confined to.
2. In an action of ejectment against the debtor by a purchaser at sheriff's sale, the defendant needs only a judgment, execution, and sheriff's deed.
3. There is no principle of law or practice of the courts by which, after a plaintiff in ejectment has obtained a judgment against the tenant in possession, upon whom a declaration has been served, he can be deprived of the fruits of his judgment by an order to stay the writ of possession on the suggestion that the title was in some other person.
(115) EJECTMENT, tried before French, J., at Fall Term, 1860, of MOORE.
The declaration was served on Duncan Murchison, Leonard Farr, and Henry Oldham, and at the appearance term K. H. Worthy was permitted to come in as landlord and defend the suit. The lessor of the plaintiff offered in evidence a judgment and execution against Duncan Murchison, a levy and sale in 1857 of the land described in the declaration, a purchase by him for $15, and a sheriff's deed for the same. The defendant then showed a sale by the sheriff for the same land as the property of Duncan Murchison, and a purchase of it by him for $2,000, in July, 1856, and a sheriff's deed to him of that date, reciting a judgment and execution against Duncan Murchison and a sale to him, and showed that a short time after the sale Duncan Murchison agreed with the defendant that if he, the defendant, would not turn him out of possession, he would hold the land as his (defendant's) tenant, and Murchison then became his tenant and held the land of him until his death, in 1857, and was so holding the land when the plaintiff purchased and at the time of the service of the declaration, and that defendant had been in possession, by himself or his tenants, from the time of his purchase, in 1856, up to the time of the trial. The court charged the jury that as the lessor of the plaintiff had showed a judgment and execution against Duncan Murchison, upon whom the declaration was served, a levy and sale, a purchase by the lessor of the plaintiff and a sheriff's deed, the plaintiff was entitled to their verdict, and that in this action it could avail the defendant nothing to show title to the land sued for. Defendant's counsel excepted. Verdict for plaintiff, and judgment and appeal by the defendant.
The record proper sets out that the plaintiff moved for a writ of possession to issue, which was opposed by the defendant, upon affidavits filed, which were considered by the court sufficient, and he moved that the writ of possession should be stayed until the lessor of the plaintiff should bring his action of ejectment against the present defendant, and until the termination of such action. This motion was sustained (116) on condition that the defendant, in the future action, should admit possession of the premises, from which order the plaintiff appealed.
Haughton for plaintiff.
Strange, McDonald, and W. McL. McKay for defendant.
From the manner in which the record is made out, we are at a loss to determine whether this is an appeal by the defendant from the ruling of his Honor on the trial of the action of ejectment, or an appeal by the plaintiff from the order staying the writ of possession until the lessor of the plaintiff should bring his action of ejectment against the defendant. But for the fact that the case made out by his Honor is sent as part of the record, we should conclude that the only point presented was on the appeal of the plaintiff in regard to the motion to stay the writ of possession, and that the confusion is to be ascribed to an attempt on the part of the clerk to insert the proceeding in respect to the order staying the writ of possession as of Fall Term, 1860. We will take it, however, that both matters are brought up for review.
There is no error in the ruling of his Honor on the trial of the action of ejectment. The facts bring this case within the doctrine that when a landlord defends in place of his tenant, he can make only such defense as his tenant could make, and that in an action of ejectment by a purchaser at sheriff's sale against the debtor in the execution, he need only show a judgment, execution, and sheriff's deed. This is the general rule, and the case does not come within the exception made under the peculiar circumstances presented in Jordan v. Marsh, 31 N.C. 234; so we conclude with his Honor, that the plaintiff was entitled to recover.
But we do not concur with him in his holding on the motion to stay the writ of possession. We are not aware of any principle of law or practice of the courts by which, after a plaintiff in ejectment has obtained judgment against the tenant in possession, upon (117) whom the declaration in ejectment has been duly served, he can be deprived of the fruits of his judgment by an order to stay the writ of possession, on a suggestion that the title is in some other person. We were informed on the argument that his Honor supposed the order to stay the execution was warranted by the opinion in Judge v. Houston, 34 N.C. 108. Such a conclusion was not warranted by that opinion, and shows that it was totally misapprehended. In that case the declaration in ejectment was not duly served on the tenant in possession, but was served on one who was only a guest or servant of the persons really in possession, and it was held that the latter, who had received no notice of the action and had no right or opportunity of making defense, should be turned out of possession under a judgment obtained against the guest or servant. But in this case the declaration was served on the person really in possession; so the opinion in that case had not the slightest application.
We are glad of an opportunity to correct this misapprehension, for, if the practice should prevail of staying the writ of possession in all cases where the landlord defends in place of his tenants, the rule that he is confined to such defense as his tenant could make, and that a purchaser at sheriff's sale, as against the debtor in the execution, need only show a judgment, execution, and sheriff's deed, would be completely eluded.
Judgment in the action of ejectment confirmed. The order staying the writ of possession reversed.
(118)