Opinion
(August Term, 1851.)
1. On the trial of an action of ejectment, the court may, in its discretion, allow one of the lessors to be stricken out of the declaration upon the costs being deposited in court and mutual releases executed. The party stricken out may then be a witness, as if his name had never been in the declaration.
2. Under the act of 1846, a party may read a registered copy of a deed to the other party who has it in possession without notice to produce the original, in the same manner as he can read a copy of a deed to himself.
3. The title to land sold under execution vests in him to whom the officer makes the deed.
4. A deed made by a sheriff or coroner under a sale by execution passes the title, notwithstanding a third person may at the time be in the adverse possession.
5. In ejectment, all the cotenants need not be joined in the demise.
6. When a person takes a deed from a debtor while the land is subject to a levy, under which it is afterwards sold, he stands in no better situation that the debtor whose place he has taken.
APPEAL from Settle, J., at RUTHERFORD Spring Term, 1851.
G. W. Baxter for plaintiffs.
Bynum for defendant.
The lessors claimed title under a judgment, execution, constable's levy, order of sale, venditioni exponas, and a sale and deed made by the coroner, James W. Carson; the plaintiff in the judgment, was high sheriff, and at the sale became the purchaser, but died before a deed was executed, and the coroner made the deed to the (370) lessors "as his heirs at law."
On the trial, the declaration was amended by striking out the name of W. P. Carson as one of the lessors, and he was called as a witness by the plaintiff and proved that the defendant was in possession and had been notified "to quit." This witness was objected to as incompetent, whereupon the amount of the costs was deposited in court by Tams, one of the lessors, to whom the witness released all of his interest in the land, and he released the witness from all claim or liability in regard to the costs. His Honor then admitted his testimony.
The plaintiffs read in evidence a registered copy of a deed from one Roberts, the defendant in the execution, as whose property the land was levied on, to the defendants dated 1 October, 1840, after the constable's levy and before the sale. This was objected to because the defendant had received no notice to produce the original.
The defendant proved that James W. Carson died in 1846, and that he had frequently said that the defendant had settled the purchase money paid by Carson for the land, and "that the land was his (Smith's)," who was the brother-in-law of Carson, and from October, 1840, claimed the land.
The defendants insisted that the plaintiff could not recover because there was no evidence that the lessors were the heirs at law of James W. Carson; because the defendant was in possession at the time the coroner executed his deed to the lessors; because W. P. Carson did not join in the demise; because Roberts had no title to the land at the time of the levy, and because the defendant's title had ripened into a perfect one under the deed of Roberts to him in October, 1840, if the jury believed the defendant had claimed the land as his from its date up to the issuing of the declaration, March, 1848. His Honor decided all these (371) points against the defendant; verdict for the plaintiff, judgment, and the defendant appealed.
First. We think it was a matter within the discretion of the court during the trial to allow one of the lessors to be stricken out of the declaration. It is common on the circuit, when, in the opinion of the court, the purposes of justice require it, to allow one who is security for an appeal or for the prosecution to be stricken off and a new bond given so as to make him a witness. The present was the exercise of a similar discretion.
Secondly, Under the act of 1846, registered copies of deeds for land are made evidence, and the production of the originals is dispensed with except under certain circumstances. The words are very general, and the present case is embraced by them. We can see nothing to take it out of its meaning. If a party may read a copy of a deed to himself, of which he has the possession, there can be no reason why he may not read a copy of the deed to the other party who has it in possession. Of the policy of this statute we have nothing to say. Our duty is to put on it a fair construction and make it consistent in its operations.
Thirdly. Our statute gives a power to sheriffs and coroners to sell all land and pass the title by deed. They must see to the proper execution of this power. The coroner, in this instance, having made the deed to the lessors as the heirs of James W. Carson, the title vests in them, on the same principle that it vests in one to whom the deed is made as assignee of the bidder. This is settled, Brooks v. Radcliff, 33 N.C. 321.
Fourthly. A deed made by a sheriff or coroner under the power conferred by the statute, like a descent, which is the act of the law, passes the title, notwithstanding a third person may at the time be in the adverse possession. There is no danger of the evils of champerty and the sale of "pretended titles" in such cases; indeed, few persons who are sold out for debt willingly give up possession. The power of the sheriff to sell would be nugatory if the position contended for be (372) true, unless the additional power was conferred on the sheriff to put the debtor in the execution out of possession and deliver it to the purchaser.
Fifthly. All of the cotenants need not be joined in the demise. This is settled in several cases.
Sixthly. In Badham v. Cox, 33 N.C. 456, it was held that one who takes a deed from the defendant in the execution after the levy is at liberty to show that the title accrued after the levy, and thereby avoid what would otherwise have been the effect of a subsequent sale under a venditioni exponas. The case has no application to the present, because it is not shown that the title of Roberts did accrue after the levy, and we have but the ordinary case of one who takes a deed from the debtor while the land is subject to a levy, under which it is afterwards sold. Of course, such person coming in, pending the proceeding, can stand in no better situation than the debtor whose place he has taken.
Seventhly. The last point is against the defendant on two grounds. there was no evidence when the defendant took possession. The evidence was that he "claimed the land as his." So there is no proof of a seven years adverse possession. But suppose there had been, and suppose further that the statute commenced running so as to bear on the defendant's color of title before the deed was made to the lessors of the plaintiff and in the lifetime of James W. Carson, whose laches it was not to take a deed after the coroner's sale, it is certain that his right of entry did not accrue until he became the purchaser at the coroner's sale in July, 1841, from which time to March, 1848, when the declaration issued, there was not the seven years necessary to ripen the defendant's color of title.
PER CURIAM. No error.
Cited: Allred v. Smith, 135 N.C. 449.
(373)