Opinion
(June Term, 1858.)
1. Where a lessor of the plaintiff in ejectment has been refused the privilege of having a count on his demise stricken out, it affords to the defendant no ground of exception.
2. A party who is estopped by the production of his own deed conveying the land in dispute, cannot show a better title acquired to him from another subsequently to his deed.
( Jordan v. March, 9 Ire. Rep. 234; Love v. Gates, 4 Dev. and Bat. Rep. 363; Johnson v. Watts, 1 Jones' Rep. 228, explained, and the rule governing the action of ejectment, allowing a party to show a better title derived from a different person than the one under whom both claim, distinguished from a strict estoppel.)
ACTION of EJECTMENT, tried before DICK, Judge, at the last Spring Term of Tyrrel Superior Court.
H. A. Gilliam and Heath, for plaintiff.
Winston, Jr., and Smith, for defendant.
S. S. Simmons, in whose name there was a count in the declaration, appeared in open Court, and through the defendant's counsel, requested the Court to have the count in his name stricken out, which motion was refused, and the defendant excepted.
The lessors of the plaintiff produced in evidence a deed from S. S. Simmons to the defendant, and a deed from the defendant to him for the land in controversy; also a deed for the same from the said S. S. Simmons to the lessor Hassell.
The defendant in order to meet the estoppel created by the defendant's deed to S. S. Simmons, offered to show title to the premises in one Joseph W. Simmons, and that he (defendant) held the land as the lessee of said J. W. Simmons, under a lease made before this suit was brought, and after the deed from S. S. Simmons to the plaintiff.
This evidence was objected to by the plaintiff and ruled out by the Court. Defendant again excepted.
Verdict for plaintiff on all the counts. Judgment and appeal.
The right of a purchaser to use the name of his bargainor in an action of ejectment is settled; Posten v. Henry, 12 Ire. Rep. 340. This being so, the defendant has no just cause of complaint, that the Court, at the instance of the bargainor, refused to permit the count on his demise to be stricken out. If such refusal was error at all, it was an error of which the bargainor only had the right to complain. It would seem from the case of Scott v. Sears, 9 Ire. Rep. 87, that he did have such right upon paying his part of the cost incurred up to the time of the motion, but we are satisfied that it was his right alone, and the defendant had nothing to do with it.
The deed from the defendant to Samuel S. Simmons, one of the lessors, created a strict estoppel against him, and he could not resist a recovery on the demise in the name of Simmons. The case of Jordan v. March, 9 Ire. Rep. 234, cited by the defendant's counsel, depends upon its peculiar circumstances, arising out of conflicting recoveries at law against the same person and sales made on executions issued thereon, and it is manifest that it cannot have any bearing upon a question of strict estoppel like the present. Equally inapplicable is the principle decided in Love v. Gates, 4 Dev. and Bat. Rep. 363; Johnson v. Watts, 1 Jones' Rep. 228, and other cases, that though where in ejectment, both plaintiff and defendant derived title from the same person, neither, as a general rule, can dispute such title, yet the defendant may defend himself, if he can, by showing that there was a better title outstanding, and that he had acquired it. The general rule here spoken of, is not (as has often been said) one founded on an estoppel, but was adopted as a rule of justice and convenience, to prevent the plaintiff in ejectment, from being compelled, in deducing his title, to go back beyond their source from which both he and the defendant derived their respective claims. The exception is rendered necessary to prevent a wrong being done to the defendant when he has another title in himself superior to both. It is hardly necessary to repeat that this has no application to a case of strict estoppel.
PER CURIAM, Judgment affirmed.