Williams v. Bennett

• Court: North Carolina Supreme Court
• Writing for the Court: RUFFIN
• Citation: Williams v. Bennett, 4 Ired. 122, 26 N.C. 122 (N.C. 1843)
• Decision Date: 31 December 1843
• Parties: DEN ON DEMISE OF JOSEPH J. WILLIAMS v. CHARLOTTE BENNETT.

26 N.C. 122

4 Ired. 122

DEN ON DEMISE OF JOSEPH J. WILLIAMS

v.CHARLOTTE BENNETT.

Supreme Court of North Carolina.

December Term, 1843.

A deed for land executed by a Clerk and Master by an order of the Court, under the act of 1836, Rev. Stat. c. 32, s. 18, conveys all the interest any of the parties to the suit had in the land, although another may be in possession claiming adversely.

The possession of a widow of land assigned to her as dower, is not adverse to the mortgagee of her husband or the assignee of the mortgagee.

The mortgagor is concluded by his deed, and, after its execution, his possession is by the consent of the mortgagee and is in law the possession of the mortgagee.

The widow's estate in her dower land is but a continuation of that of her husband, and is affected by the same estoppels, which attached to it in the hands of the husband.

A mortgagor, or one claiming under him, is not entitled to notice to quit.

Even where a tenancy is construed to be from year to year, if, after the commencement of a year, there is an express lease for a certain time and an agreement to quit at the end of that time, this dispenses with notice.

The cases of Bufferlow v Newsom, 1 Dev. 208, and Fuller v Wadsworth, 2 Ired, 263, cited and approved.

Appeal from the Superior Court of Law of Martin County at Fall Term, 1843, his Honor Judge BAILEY presiding.

This was an action of ejectment commenced on the 17th of February, 1842. On the trial it appeared that on the 16th of October, 1827, Eli Bennett executed to Joseph J. Williams, who is the lessor of the plaintiff, and to William S. Rayner a mortgage for sundry slaves, and also for a tract of land in fee, of which the premises described in the declaration are part, for the purpose of securing the payment of certain debts to those persons and to others, for which they were his sureties. He died intestate in 1828; and Williams and Rayner, afterwards but at what particular time does not appear, sold the salves under a power to that effect in the deed. Afterwards, but at what time does not appear, a bill was filed in the Court of Equity against Williams and Rayner, by the administrator and heirs at law of Eli Bennett, for an accouut of the mortgage debts and of the proceeds of the effects sold, and for the payment of any balance thereof that might be remaining in their hands, and for a redemption of the tract of land. In that suit a balance of $1281 78 was found to be still due to Williams in 1840, after applying all the mortgaged property except the land; and, for the purpose of paying that balance, it was decreed, that the land should be sold by the clerk and master, and he accordingly made a sale to Williams, the lessor of the plaintiff, at the price of $800, and, after the confirmation of the sale, and in obedience to an order in the cause, conveyed the land to him by deed bearing date the 2d of March, 1842.

After the death of Eli Bennett the present defendant, who is his widow, continued in possession of the mortgaged premises. The case states further, that on the trial she gave in evidence the record of a suit by petition instituted by her in the County Court for dower in those premises, as the widow of Eli Bennett; in which dower was assigned to her by a jury and finally adjudged in January, 1832; and that the defendant further gave evidence, that, under that judgment, she had ever since claimed and possessed the land allotted to her therein for dower, as her own.

The plaintiff then proved, that, on the 1st of April, 1842, the lessor of the plaintiff let the premises to the defendant for the residue of that year at a rent of one dollar; for which she gave her bond, expressed to be “for the rent of the land whereon I now live, being the lands formerly belonging to the estate of Eli Bennett.” And the plaintiff further proved by a witness, that it was then agreed by the lessor of the plaintiff and the defendant, that the lease was to terminate at the end of that year, and that the defendant should then surrender the premises to Williams. To this testimony of the witness the defendant objected, because it was not competent to vary the terms of the bond by parol.

The counsel for the defendant insisted, that she was in the adverse possession of the premises, claiming under the allotment of dower, and therefore that the deed of the clerk and master did not pass any title to the lessor of the plaintiff. But the Court held that the deed was effectual to pass the title.

The counsel for the defendant further insisted that she was not estopped to deny the title of the lessor of the plaintiff, as her landlord, and set up title in herself, beecause she did not receive the possession from him; and that she did shew title in herself by the assignment of dower and her possession under it for more than seven years. Upon which the Court held, that the said possession of the defendant under such claim, without suit or claim by Williams or Rayner, would bar them, and give her a title for life in the premises allotted for her dower; but that, by acknowledging the title to be in the lessor of the plaintiff in 1842, and continuing her possession that year under him and giving her bond for the rent, the defendant was estopped to deny his title.

The counsel for the defendant further insisted, that, if there was a tenancy between the parties, this action could not be...