Southerland v. Stout

• Decision Date: 31 January 1873
• Citation: 68 N.C. 446
• Court: North Carolina Supreme Court
• Parties: A. C. SOUTHERLAND v. ELIZABETH STOUT.

68 N.C. 446

A. C. SOUTHERLAND

v.ELIZABETH STOUT.

Supreme Court of North Carolina.

January Term, 1873.

Where a father having a life estate only, makes a deed in fee simple for land, with warranty; his heir, with or without assets, is rebutted by the warranty, except, in cases where the rule of the common law is changed by statue, or where the heir can connect himself with the out standing remainder or reversion.

CIVIL ACTION, tried before Mitchell, J., at Fall Term, 1872, of ASHE Court.

Plaintiff claimed two tracts of land, alleging that he was the owner of the same in fee.

Defendant denied all the allegations of the complaint.

On the trial plaintiff introduced a deed from one Cox to John Potter and a deed from Potter to Samuel McQueen and a deed from McQueen to the plaintiff. The deed from Cox to Potter conveyed only an estate for the life of Potter, but contained a clause of general warranty of the land to Potter and his heirs. The deed from Potter to McQueen was a deed in fee simple, and contained a covenant of general warranty from the grantor for himself and his heirs to the grantee and his heirs, and the deed from McQueen to the plaintiff was of the same character. It was admitted that these deeds all covered the land described in the complaint.

Plaintiff proved that defendant stated in a conversation that the said John Potter was her father and that she had lived on the land all her life, and now claimed it as her own; she also stated that her father died in 1860. The deed from McQueen to plaintiff was dated 1861.

Defendant insisted that if this was so, as the deed from Cox to Potter conveyed only a life estate, the deed from Potter to McQueen passed an interest, and consequently it created no estoppel against Potter's heirs. His honor was of opinion with the defendant. Judgment for defendant. Plaintiff appealed.

G. N. Folk, J. W. Todd, for appellant .

Furches, S. Trivett, contra .

PEARSON, C. J.

If the defendant, or her father, had purchased the reversion which remained in Cox, after the life estate was carved out, the very interesting question in respect to the doctrine of estoppel, which was argued by Mr. Folk with much learning, and upon which the case turned in the Court below, would have been presented to us for a decision. But neither the defendant nor her father acquired that reversion, and she defends this action against one claiming under her father, simply on the ground of an outstanding title in the heirs of Cox, with whom she has no connection.

“When both parties claim under the same person, neither shall deny the title of the person under whom both claim.” The 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 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 the 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 holds possession for him or under him. Love v. Gales, 4 Dev. & Bat., 363; Copeland v. Sauls, 1 Jones, 70; Newlin v. Osborne, 2 Jones, 163.

In our case both parties claim under Potter; certainly, if Potter had been sued after the death of Cox, he could not have defeated a recovery in the face of his own deed, on the ground of an outstanding title in the heirs of Cox; and I am inclined to the opinion that the present defendant, who is his heir at law, upon whom his rights and duties devolved by act of law, as his real representative, stands in his shoes, and cannot in the face of the deed of her ancestor set up an outstanding title as a defence to an action brought by one claiming under the deed of her ancestors.

The decision, however, is not put upon that point, for besides the deed of the defendant there is a general warranty by which he binds himself and his heirs to warrant and defend the title to McQueen, which warranty the plaintiff acquired as...