Opinion
(February Term, 1893.)
Ejectment — Estoppel — Findings of Jury.
1. Where, in ejectment, the jury found that "plaintiff did advise or induce defendant to buy the land before he purchased the same," such finding is not sufficient to create an estoppel against plaintiff when it is not also found that plaintiff knew of her title when she gave the advice, or that defendant did not know of plaintiff's title, or that he was deceived by such advice.
2. A finding by a jury that defendant in ejectment did not purchase from another in good faith and without knowledge of plaintiff, is not inconsistent with another finding that plaintiff advised or induced the defendant to buy the land before he purchased it.
ACTION for recovery of land, tried before McIver, J., and a jury, at Fall Term, 1892, of WILKES.
(528) Glenn Manly for defendants.
No counsel contra.
If the first four issues with the findings of the jury are read in connection with the pleadings, we have the following narrative of facts: The land in controversy was owned by one Minton, of whom the plaintiff, Eliza Bishop, was a daughter. Minton conveyed it to James Calloway, who surrendered the deed without having it registered, and also executed a quit-claim deed therefor to Minton, thus putting the title back in him and his heirs. James Calloway, if he subsequently obtained possession of the deeds, got such possession not rightfully. The defendant, Leonidas Minton, purchased the land from the executor of James Calloway and another with knowledge of plaintiff's claim thereto as one of the heirs of her father, and this purchase was not made "in good faith."
Thus it appears that both parties claim title from the same source — the ancestor of plaintiff; and that since, by the finding of the jury, James Calloway is shown to have surrendered what title he had, defendant, who claims through him, cannot hold the land against the plaintiff unless he can show some title derived from her or good against her by estoppel. The fifth issue seems to have been submitted at his instance, so that he might establish an estoppel against her, though it had not been pleaded by him. This was his defense. If he designed to defeat the plaintiff's recovery in this way, it was incumbent on him to have the jury find such facts as would constitute an estoppel against the plaintiff, a married woman. This he has not done. We are informed by the verdict that the plaintiff did "advise or induce the (529) defendant to buy the land before he purchased the same" (fifth issue), but we do not know that plaintiff knew of her title when she gave this advice, or that defendant did not know of plaintiff's title, or that he was deceived by this advice. Hence the facts were not found from which it could be adjudged that plaintiff was estopped, even were she a feme sole. Holmes v. Crowell, 73 N.C. 623; Loftin v. Crossland, 94 N.C. 76; Estes v. Jackson, 111 N.C. 145. Therefore it is not necessary to consider under what circumstances, if any, a married woman may be deprived of her realty by estoppel. The defendant cannot be allowed to delay plaintiff in the recovery of her land because he has failed to allege, as well as prove, facts essential to the validity of his defense.
We see no reason why the action should have been dismissed upon defendant's motion, nor do we think the answers to the fourth and fifth issues inconsistent so as to entitle defendant to a new trial.
NO ERROR. AFFIRMED.
(530)