Posten v. Henry

Full title: ROBERT POSTEN v. ROBERT HENRY

Court: Supreme Court of North Carolina

Date published: Aug 1, 1851

34 N.C. 339 (N.C. 1851)

Opinion

(August Term, 1851.)

A purchaser of land is a privy in estate with the bargainor, and has the right, when necessary, to use the name of the bargainor to effect a recovery in ejectment, and also to take possession in his name.

APPEAL from Bailey, J., at BUNCOMBE Special Term, 1851.

Trespass for mesne profits. The plaintiff read in evidence the record of a recovery in ejectment. The declaration contained three counts upon the several demises of the plaintiff, of Rebecca Posten, and of George W. Jones. At the trial the issue on the demise of the plaintiff was alone submitted to the jury. The writ of possession recited a recovery on the demise of the plaintiff. Under it the sheriff put George W. Jones in possession, and afterwards this action was brought. To show a privity of estate between the plaintiff and said Jones, and that the latter had authority to take possession in the name of the plaintiff, a judgment, execution, and sheriff's deed were read in evidence, from which it appeared that the land had been sold by the sheriff as the property of Posten and was bought by and conveyed to the said Jones. The sale was made in 1844. The deed was executed in 1847.

A deed from the plaintiff to Jones, executed in 1834, was also read in evidence. It is an ordinary deed of bargain and sale for the consideration of $600. At the foot of this deed is a memorandum that Jones is to have "full possession" at the death of Rebecca Posten.

The court was of opinion that the plaintiff had not made out his case because there was no evidence of an entry by him after the recovery in ejectment. The plaintiff submitted to a nonsuit and appealed.

N.W. Woodfin for plaintiff. (340)

J. Baxter and Henry for defendant.

PEARSON, J.

When this case was before us at August Term, 1850, it was decided against the plaintiff upon the ground that no connection had been shown between him and Jones. We think that objection is now fully met by the two deeds which were read in evidence. By them Jones is made a privy in estate with the plaintiff, and this case is the ordinary one of a purchaser who brings ejectment on the demise of the bargainor to obviate an objection on account of an adverse possession at the execution of the deed.

The bargainee is a privy in estate, and has the right to use the name of the bargainor to effect a recovery and to take possession in his name.

PER CURIAM. Reversed.

Cited: Hassell v. Walker, 50 N.C. 271.

(341)