Clapp v. Coble
| Decision Date | 31 December 1835 |
| Citation | 21 N.C. 177,1 Dev. 177 |
| Court | North Carolina Supreme Court |
| Parties | DANIEL CLAPP et al. v. SAMUEL COBLE. |
OPINION TEXT STARTS HERE
A tenant, against whose landlord a judgment in ejectment had been recovered, may, after such judgment and before eviction, purchase in the title of the real owner, and hold the possession of the land as his own, under his newly acquired title.
It seems, that although before eviction after a judgment in ejectment, the covenant for quiet enjoyment is not broken, yet if the tenant of the vendee acquires a new title, after such judgment, and before his eviction, it will amount to a breach of that covenant, so as to entitle the vendee to his action.
An administrator, who bona fide carries on a suit commenced by his intestate, will be allowed the expenses of such suit as a proper disbursement, although it may be unsuccessful.
THE plaintiffs and the defendant were the next of kin and the heirs at law of David Coble, deceased. This bill was originally filed for two purposes; the one to call the defendant, who was also administrator of the said David, to account with the plaintiffs for their distributive shares of the personal estate of the deceased; and the other, for the partition of three tracts of land, whereof it was averred that the deceased died seised in fee simple. The first part of the case was disposed of, except in relation to a single item claimed by the defendant as a disbursement, it being the amount of costs and charges paid by him in the unsuccessful prosecution of a suit instituted by the deceased, and carried on by the defendant after his death and as his administrator. If this were allowed to the defendant as a proper disbursement, the plaintiff had no further claim as next of kin; if it were not, then they would be entitled to an additional sum to that already decreed to them. With respect to two of the tracts of land there was no controversy. The defendant admitted the common seisin of the plaintiff and himself therein, and assented to the partition prayed for. But with respect to the tract called the Welbourn tract, the defendant insisted that he was the sole proprietor of it, and that the plaintiff had no right to ask for a partition thereof. The facts in relation to the title to this disputed tract, upon the pleadings and proofs, appeared to be these.--Jane M'Gee was seised thereof in fee simple. She married John Welbourn, who executed a deed of bargain and sale unto one William Bell, whereby he purported to convey the said tract to the said William in fee simple; and on the 27th of October, 1799, the said William, by deed of bargain and sale, conveyed the same in fee simple to the deceased David Coble. Jane Welbourn was not a party to the deed of her husband, but subscribed her name to an endorsement upon the deed of William Bell, or to a certificate annexed thereto, declaring that she assigned all her right in the said land for a valuable consideration to the said David Coble. Under this claim of title David Coble remained in possession of the tract during the life of John Welbourn. He died after the month of May, 1823, and before the 29th of September, 1825, when his widow instituted an action of ejectment against Samuel Coble and Daniel Coble, sons of David, and tenants in possession under him. By an order made in the cause, David, as the landlord of the said Samuel and Daniel, was made a party defendant in their stead, and in November, 1826, a verdict was had and a judgment rendered for the plaintiff in ejectment. Immediately after this judgment was rendered, and before any eviction of possession, an action was brought by David Coble against the representatives of his bargainor, William Bell, for a supposed breach of the covenants contained in the deed aforesaid of the said William. The plaintiff in this action having died, the present defendant, as his administrator, revived and prosecuted the said action, which was finally decided against him, because the covenant sued on was a covenant for quiet enjoyment, and a breach of that covenant had not taken place when the suit was instituted. On the day succeeding that upon which the last mentioned suit was commenced, the defendant, who was yet on the land, obtained a conveyance therefor from William Welbourn, who claimed under a conveyance with covenants of general warranty from John Welbourn and his wife Jane, dated the 14th May, 1823. The defendant paid a full and fair consideration for the land to William Welbourn, and under this conveyance hath continually since enjoyed the land as his own.
Nash, ...
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Springs v. Atlantic Refining Co.
...that it rightfully belongs to a third person, during the continuance of such tenancy. Hobby v. Freeman, 183 N.C. 240, 111 S.E. 1; Clapp v. Coble, 21 N.C. 177. But wholesome and salutary principle, supported both by authorities and considerations of public policy, we apprehend is not necessa......
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Prudential Ins. Co. Of Am. v. Totten, 333.
...the continuance of the tenancy, is established by all the authorities on the subject. Hobby v. Freeman, 183 N.C. 240, 111 S. E. 1; Clapp v. Coble, 21 N.C. 177. But this principle, founded upon reasons of public policy, applies only in cases where the simple relation of landlord and tenant e......
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Prudential Ins. Co. of America v. Totten
...the continuance of the tenancy, is established by all the authorities on the subject. Hobby v. Freeman, 183 N.C. 240, 111 S.E. 1; Clapp v. Coble, 21 N.C. 177. But this principle, founded upon reasons of public applies only in cases where the simple relation of landlord and tenant exists (Ab......
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Shelton v. Clinard
...the property or by undertaking to show that it rightfully belongs to a third person. Hobby v. Freeman, 183 N.C. 240, 111 S.E. 1; Clapp v. Coble, 21 N.C. 177. The reasons in of the wisdom of such a policy are fully set forth by Hoke, J., in Lawrence v. Eller, 169 N.C. 211, 85 S.E. 291, L. R.......