Gilliam v. Bird.

• Citation: 49 Am.Dec. 379,8 Ired. 280,30 N.C. 280
• Court: United States State Supreme Court of North Carolina
• Decision Date: 30 June 1848
• Parties: DEN ON DEMISE OF JOHN R. GILLIAM v. JOHN W. BIRD.

8 Ired. 280

30 N.C. 280

49 Am.Dec. 379

DEN ON DEMISE OF JOHN R. GILLIAM

v.JOHN W. BIRD.

Supreme Court of North Carolina.

June Term, 1848.

It is an inflexible rule, that whenever both parties claim under the same person, neither of them can deny his right, and then, as between them, the elder is the better title and mnst prevail.

A house, or even the upper chamber of a house, may be held separately from the soil, on which it stands, and an action of ejectment will lie to recover it.

A street in a town or any other high-way, though now dedicated to the use of the public, may have been, and probably was once the subject of private property, and therefore the ordinary doctrine of estoppel will apply to it.

A deed from A. to B. estops, not only A., but all who claim under him.

A plaintiff in ejectment is entitled to a verdict, if he can shew a wrongful possession in the defendant of any part, no matter how small, of what he claims in his declaration.

The cases of Murphy v. Barnett, 1 Car. L. Rep. 105, Ives v. Sawyer, 4 Dev. and Bat. 41, Collins v. Benbury, 3 Ired. 285, and Huggins v. Ketehum, 4 Dev. and Bat. 415, cited and approved.

Appeal from the Superior Court of Law of Bertie County, at the Spring Term, 1848, his Honor Judge SETTLE presiding.

This was an action of ejectment brought to recover a house and lot of land in the town of Windsor. The lessor of the plaintiff showed in evidence a deed from one David Ryan to himself, and proved that the building and lot mentioned in that deed are the same as those described in the declaration. The said deed is dated 4th Feb. 1841. He then proved that in 1843, at a sale of said David Ryan's property, one George S. Holley was present and requested John Freeman, the sheriff, to put up for sale the interest of the said David Ryan either in the building alone, or in it and the ground on which it rested, and the said lot of land; whether he requested any thing more than the building to be put up, there was conflicting testimony. The said John Freeman therupon complied with said request and the said George S. Holley became the purchaser. The said Holley afterwards rented the said house to Dr. Robert H. Smith, who went into possession as tenant of said Holley, and continued in possession up to the time of the bringing of this action; first as the tenant of said Holley, and then as the tenant of the defendant, who had purchased of Holley whilst Smith was in possession. The defendant proved that the ground on which the building stood, and the said lot of land, formed, as early as 1815, a part of one of the public streets of the town of Windsor; that in 1832, or 1833, the building was placed where it now stands; that from the said year 1815, up to the year 1835, or 1836, the said street continued to be used as a public street, except that part of it covered by the said building after the year 1832 or 1833; that in 1835 or 1836, the fence enclosing said lot of land was put up. lt was then proved that Smith, as the tenant first of Holley, then of Bird, who purchased of Holley, had been in posession of the said building, three years next, before the beginning of this action. The defendant contended, that the plaintiff could not recover; first, because Smith, the tenant of Holley and Bird, having been in possession of the said building more than three years before the commencement of this action, then if the jury should believe from the evidence, that the building only was sold, and not the ground on which it rested, nor the lot, the building is to be considered as personalty, and the defendant is protected by the statute of limitations.

Secondly, that this action cannot be sustained for the building without the ground on which it rests or the lot of land.

Thirdly, that the plaintiff had not made out a title for the ground on which the building was, and the lot belonged to the public.

Fourthly, that the ground on which the building stood, and the said lot, being part of a street, was not the subject of a grant, and therefore no estoppel could arise, although poth parties might claim under the same person.

Fifthly, as no deed was shown from said Freeman, sheriff, to said Holley, nor from Holley to the defendant, the defendant was not estopped.

Sixthly, if the jury should be satisfied from the evidence, that Holley claimed only the building, and not the ground on which it stood, nor the lot, the defendant was not estopped.

His Honor instructed the jury, that the statute of limitations applied to the form of the action, and as this was an action of ejectment, the right of entry of the real owner was not barred until after seven years adverse possession of the defendant under colour of title; that, whether the deed conveyed the house or the lot of land, was a questson for the Court and not for the jury; that the deed from Ryan to the plaintiff conveyed an interest in real estate which could be recovered in an action of ejectment only; that as to the 3d, 4th, 5th, and 6th objections made to the plaintiff's recovery, his Honor instructed the jury, that the land, upon which the house stood, though formerly a part of the public street of the town of Windsor, was the subject of a grant, as all land in the State not covered by water was subject to entry; that though the plaintiff might not have the real title, yet as the plaintiff purchased the property of Ryan, if Holley purchased it as Ryan's property, and, claming title under Ryan, leased it to Smith, and afterwards sold it to the defendant Bird, that Bird would, as against the plaintiff, be estopped to deny Ryan's title, and that, in order to create an estoppel, a deed was not always necessary. But whether Holley claimed the title of Ryan, and whether he afterwards leased it to Smith, were facts for them to find.

The jury rendered a verdict for the plaintiff. Rule for a new trial. Rule discharged and...