Whissenhunt v. Jones

Decision Date31 January 1878
PartiesDANIEL WHISSENHUNT v. W. C. JONES and others.
CourtNorth Carolina Supreme Court
OPINION TEXT STARTS HERE

CIVIL ACTION to recover Possession of Land, removed from Caldwell and tried at November Special Term, 1877, of BURKE Superior Court, before Schenck, J.

Both parties claimed title under Henry Yount. The defendants, Mack Chester and Wesley Watson, were at first let into possession of the land in dispute as tenants of the plaintiff. The defendant, Yount, came in and defended the action as landlord. The defendant, Jones, was also allowed to be made a party defendant; and in his answer alleged that he was the owner of the land at the time when this action was instituted, and that the defendants, Chester and Watson, were his tenants, and that defendant, Yount, was never in possession of the same.

The plaintiff put in evidence a deed from Yount to John Hayes, dated July 3d, 1867, and one from Hayes to plaintiff dated October 2d, 1869, conveying the land to plaintiff; also a deed from the Sheriff to the defendant, Jones, dated March 12th, 1870, (execution sale of Yount's land) which said last deed was introduced to estop the defendants from denying Yount's title (all the deeds covering the land in controversy).

The plaintiff testified that after he paid for and took possession of the land, he employed defendants, Chester and Watson, to work a part thereof under a certain agreement; that about the time the crop was gathered, the defendant Jones instituted a proceeding before a Justice of the Peace against him, and being ignorant of his rights and wishing to avoid a law-suit, he paid rent on the part of the land he worked, to Jones, and directed the tenants to do the same. There was much other evidence on the part of plaintiff and defendants, but it is not material to the points decided here.

The defendants insisted, (1) That plaintiff could not recover because no notice to leave had been served upon Chester and Watson who were the original defendants, and (2) That if plaintiff was entitled to damages in any event, they could only be given to the time when the suit was commenced, and not to the time of the trial.

Upon the issues submitted and under the instructions of His Honor, the jury found for the plaintiff. Judgment. Appeal by defendants.

Messrs. A. C. Avery and R. F. Armfield, for plaintiff .

Mr. G. N. Folk, for defendants .

BYNUM, J.

1. Both the plaintiff and defendants claimed title under one Yount. In such case the rule is settled in this State, that it is not competent for either claimant to deny that such person had the title; and though the defendants may show that they have in themselves a better title than the plaintiff, they cannot set up a title in a third person. Love v. Gates, 4 Dev. & Bat. 363. The plaintiff here had the elder and superior title and was therefore entitled to recover, unless he was prevented by the next exception.

2. But it was next objected that the plaintiff cannot recover, because no notice to leave had been served upon the original defendants, Watson and Chester, who went into possession under the plaintiff, as his tenants from year to year.

The answer is, that the defendant, Yount, was allowed to come in and defend the action as landlord, and in such case it is settled that no notice before beginning the action is necessary. The application of Jones to defend in place of the tenants, presupposes that the tenants are the tenants of Jones; so that although they entered at first as the tenants of Whissenhunt they must have subsequently attorned or turned over to Jones, and thereby disclaimed and disavowed their tenancy to Whissenhunt, and thus put themselves in the wrong which dispensed with notice. Foust v. Trice, 8 Jones 490.

3. The last exception is that damages could...

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21 cases
  • Weston v. John L. Roper Lumber Co.
    • United States
    • United States State Supreme Court of North Carolina
    • 12 Marzo 1913
    ...... pleadings (section 1 of amended complaint, and section 1 of. answer thereto) that the lands in controversy were granted to. Benjamin Jones. The answer admits "that on July 10,. 1788, the state of North Carolina issued a grant to one. Benjamin Jones, that that appears upon the books ......
  • Stewart v. Cary
    • United States
    • United States State Supreme Court of North Carolina
    • 29 Octubre 1941
    ...Feimster v. McRorie, 46 N.C. 547, 548; Newlin v. Osborne, supra; Register v. Rowell, 48 N.C. 312; Taylor v. Gooch, 48 N.C. 467; Whissenhunt v. Jones, 78 N.C. 361; v. Neely, 81 N.C. 114; Christenbury v. King, supra; Ryan v. Martin, 91 N.C. 464; Ferebee v. Hinton, 102 N.C. 99, 8 S.E. 922; Bon......
  • Weston v. John L. Roper Lumber Co
    • United States
    • United States State Supreme Court of North Carolina
    • 12 Marzo 1913
    ...... in the pleadings (section 1 of amended complaint, and section 1 of answer thereto) that the lands in controversy were granted to Benjamin Jones. The answer admits "that on July 10, 1788, the state of North Carolina issued a grant to one Benjamin Jones, that that appears upon the books ......
  • Doak v. Hamilton
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • 19 Noviembre 1926
    ...§§ 2365-2371, that, when ejectment is brought to enforce a forfeiture, damages shall be assessed to the time of trial. See Whissenhunt v. Jones, 78 N. C. 361; Burnett v. Nicholson, 86 N. C. 99; Pearson v. Carr, 97 N. C. 194, 1 S. E. Reversed and remanded for further proceedings. Reversed. ...
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