Newlin v. Osborne

• Decision Date: 30 June 1855
• Citation: 47 N.C. 163,2 Jones 163
• Court: North Carolina Supreme Court
• Parties: Doe on the Demise of JOHN NEWLIN v. MATTHEW OSBORNE.

2 Jones (NC) 163

47 N.C. 163

Doe on the Demise of JOHN NEWLIN

v.MATTHEW OSBORNE.

Supreme Court of North Carolina.

June Term, 1855.

The rule adopted in our Courts, in the action of ejectment, that where both plaintiff and defendant claim under the title of a prior grantee, neither shall be allowed to dispute the title of such prior grantee, does not forbid the defendant from showing, that before the plaintiff had got his conveyance, (which was a sheriff's deed) such prior grantee had conveyed to him, though without consideration, and that he had conveyed to a third person for a full and valuable consideration, who had no notice of the rights of the plaintiff.

THIS was an ACTION of EJECTMENT, tried before his Honor Judge DICK, at the Spring Term, 1855, of Alamance Superior Court.

Graham, for plaintiff .

Norwood, for the defendant .

PEARSON, J.

In ejectment, the plaintiff asks the court to turn the defendant out, and put him in possession of the land sued for; hence the rule, “the plaintiff must recover upon the strength of his own title and not upon the weakness of that of the defendant.”

Two exceptions are made. 1st. Where the plaintiff's lessor is a purchaser at sheriff's sale, and the defendant is the defendant in the execution.

2d. “Where both parties claim under the same person, neither shall deny the title of the person under whom both claim.” This exception is not based on the idea of an estoppel, but is a rule of practice, which has become a rule of law, adopted by the courts for the purpose of aiding the administration of justice, by dispensing with the necessity of requiring the plaintiff to prove the original grant and mesne conveyances (which in many cases it was out of his power to do) upon proof that the defendant claimed under the same person. An exception is made to this exception, when the defendant can show that the true title was in a third person, paramount to the title of the person under whom the plaintiff and defendant both claim; and that the defendant has acquired this paramount title from such third person, or can connect himself with such third person, as by showing that he held possession for him, or under him. Love v. Gates, 4 Dev. and Bat. Rep. 363; Copeland v. Sauls, 1 Jones' Rep. 70.

In our case, both parties make title under Davis, and there is no reason why it should not fall under the second exception: so, neither party is at liberty to deny that Davis was the owner of the land.

Taking that to be a ...