Opinion
(June Term, 1851.)
Where A. had leased land to B. for the year 1848, and during the year 1848, while B. was in possession under the lease, A. executed to C. a deed purporting to convey him the fee simple, and thereupon C., on 25 December, 1848, commenced an action of ejectment against B.: Held, that the action would not lie, because at the date of the demise C. had not the right of entry.
APPEAL from Bailey, J., at ROCKINGHAM Spring Term, 1851.
The evidence was that the lessor of the plaintiff purchased the land in dispute as the property of Robert L. Osborn, husband of the defendant, at November Term, 1847, of Rockingham County Court, at (27) sheriff's sale, took a sheriff's deed, and had the same duly recorded; that before Christmas, 1847, the lessor leased the said land to the said Robert L. Osborn for the year 1848; that the said Robert held over, and lived with the defendant, his wife, on the land until 5 May, 1849, when the said husband died, and that the defendant, his widow, continued on the land until after she was served with a copy of the declaration in this case.
A verdict was rendered for the plaintiff, subject to the opinion of the court, whether in case the said Robert L. Osborn, the husband, rented the land for the whole of the year 1848; the demise, as stated in the declaration, being on 25 December, 1848, and the ejectment being stated on 1 January, 1949, the plaintiff could recover.
The court, being of opinion with the defendant on the point reserved, set aside the verdict and ordered a nonsuit, from which judgment of nonsuit the lessor of the plaintiff appealed.
J. T. Morehead for plaintiff.
Kerr for defendant.
We concur with his Honor, before whom the case was tried, and in the judgment he gave. The demise in the declaration is laid on 25 December, 1848. In the latter part of the year 1847 David Price, the lessor of the plaintiff, and who was the owner of the land, leased it to Robert L. Osborn for the year 1848. Osborn entered into possession and continued it during the whole of that year and until some time in 1849, when he died, and the defendant, his widow, continued on the land. On 26 December, 1848, the date of the demise, R. L. Osborn, the lessee, was in possession of the premises under his unexpired lease. His possession was a lawful one, and David Price, the lessor, had no right of entry, and without such right he could make no lease to the (28) plaintiff. In ejectment, the lessor of the plaintiff must recover upon the strength of his title. He must show a good title to the premises, and a right of entry, vested in him at the time of the demise; otherwise, he cannot recover. Brown on Actions, 466; 1st Chit. Pl., 880; 2 East, 250; 13 East, 210, 212.
PER CURIAM. Affirmed.