Stancel v. Calvert

• Citation: 60 N.C. 104
• Parties: Doe on the demise SAMUEL T. STANCEL v. SAMUEL CALVERT.
• Decision Date: 30 June 1863
• Court: North Carolina Supreme Court

60 N.C. 104

Doe on the demise SAMUEL T. STANCEL

v.SAMUEL CALVERT.

Supreme Court of North Carolina.

June Term, 1863.

Where A agreed to let B put a saw-mill and houses and fixtures on his land for the purpose of carrying on the business of sawing lumber as long as B wished, it was held that B had a life interest in the land necessary to the business, determinable sooner at B's option, and that this interest and the mills, &c., erected according tot he privilege, were not liable to be sold by a constable by a virtue of an execution under a justice's judgment without an order from Court. Held also, that ejectment would lie to recover such an interest.

Action of EJECTMENT, tried before HEATH, J., at the Fall Term, 1862, of Northampton Superior Court.

The action was brought to recover a “saw-mill and fixtures situate on the land of John W Stephenson,” and of which the defendant had possession. Both parties claimed under one George R. Jordan, who held the property, in dispute, under the following sealed instrument, entered into by said Jordan and Stephenson:

“Know all men by these presents, that we, George R. Jordan and John W. Stephenson, have this day entered into the following agreement, viz: That the said George R. Jordan wishes to put up on the lands of the said John W. Stephenson a saw-mill with all the necessary fixtures, and agrees to let the said John W. Stephenson have all the manure that is raised by the stock on and around the said mill, in compensation for the use of the privilege of putting the mill and necessary fixtures thereon.

The said John W Stephenson agrees on his part to let the said George R. Jordan have the privilege to use and enjoy the said land around the said mill as long as the said Jordan wishes to use the same for the purpose of carrying on the business of sawing timber at said mill. And when the said Jordan wishes to discontinue the business or wishes to remove the said mill, he shall have the right to remove the mill and all the fixtures, houses and every thing else, he, the said Jordan, may have put thereon.” The plaintiff claimed under a judgment and execution issued from the county court, and a sale and deed therefor from the sheriff, who sold under the execution, the defendant claiming under a magistrate's judgment--execution--levy and sale by a constable, the levy not having been returned to court. The plaintiff's execution was first levied, but the sheriff did not remain in possession of the...