Fuller v. Wadsworth

• Decision Date: 30 June 1842
• Citation: 38 Am.Dec. 692,2 Ired. 263,24 N.C. 263
• Court: North Carolina Supreme Court
• Parties: DEN ON DEMISE OF CHARLES FULLER v. BARNABAS WADSWORTH.

2 Ired. 263

24 N.C. 263

38 Am.Dec. 692

DEN ON DEMISE OF CHARLES FULLER

v.BARNABAS WADSWORTH.

Supreme Court of North Carolina.

June Term, 1842.

Where a demise in a declaration in ejectment was laid to be on the first day of January, and the service of the declaration appeared by the sheriff's return to have been made on the thirty first of December preceding, held that, after the defendant has confessed the lease, entry and ouster, he is precluded from making any objection to the declaration on that account.

A mortgagee, after the day of payment passed, may bring an action of ejectment against the mortgagor, without any notice to quit or demand of possession.

An appeal from the judgment of the Superior Court of Lenoir county, at Spring Term, 1842, his Honor Judge BATTLE presiding. This was an action of ejectment on the trial, of which the following facts were agreed upon. On the 4th of November, 1835, the premises in dispute, and of which the defendant was in possession, were mortgaged by him to William D. Mosely. After the mortgage became forfeited, to wit, on the 23d of November, 1838, the said William D. Mosely, dy deed, conveyed his interest in the said mortgaged premises to the lessor of the plaintiff, Charles Fuller. At Spring Term, 1838, of Lenoir Superior Court of law, the lessor of the plaintiff obtained a judgment against the defendant Wadsworth, upon which a writ of fi fa was issued and levied by the sheriff upon the said Wadsworth's equity of redemption in the said lands; and on the first Monday of July, 1838, the said equity of redemption was sold by the sheriff at public sale, when the lessor of the plaintiff became the purchaser, and on the 7th of April, 1840, the said sheriff executed to the purchaser a deed for the same. The declaration in ejectment was issued to the County Court of Lenoir, at its January Term, 1839, and the demise therein stated was the first day of January, 1839. The defendant has never been out of the possession of the premises since the date of his mortgage to William D. Mosely, and there was no evidence offered by the plaintiff of a notice to the defendant to quit, or demand of possession, before the bringing of this action. The declaration in this case appears from the return of the sheriff, endorsed on the same, to have been served, as follows, “Executed by delivering a copy of this the 31st day of December, 1838.” The defendant had, as it appeared from the record, confessed lease, entry and...