Opinion
December Term, 1850.
In ejectment the rule is well established that when a person is admitted by the court to defend as landlord, which he has a right to claim, he stands in the place of his tenant, and can make no defense which the tenant could not have made.
APPEAL from the Superior Court of Law of GATES, at Fall Term, 1850, Caldwell, J., presiding.
A. Moore and W. N. H. Smith for plaintiff.
Heath for defendants.
On the trial of this ejectment the lessors of the plaintiff deduced title to the land in dispute through a deed from one Benton to their ancestor, executed in August, 1841. This suit was commenced against Benton, and the defendants were allowed by order of court to come in and defend as landlords of Benton. They alleged that they had purchased the said land, as the property of the said Benton, at a sheriff's sale subsequent to 1841, and that the deed from the said Benton to the ancestor of the lessors of the plaintiff was made expressly to defraud one of the defendants of a large debt, which he had against the said Benton, on which there had been a judgment and execution, and under which the said land had been sold, when they became the purchasers; all of which they offered to prove. The introduction of the testimony was opposed by the counsel of the plaintiff, on the ground that Benton was estopped as against the lessors, and the same estoppel extended to the defendants. (381)
The court received the testimony and the defendants had a verdict. From the judgment thereon the plaintiff appealed.
It is stated in the record, "At Fall Term, 1846," "Timothy Lassiter, Wiley Reddick and Lassiter Reddick came into court as landlords, enter into the common rule, and are permitted to defend." A landlord has a right to be made defendant with his tenant, when he appears, or to defend in his stead if he fails to appear, but in either case he can only make such defense as the tenant can make. He stands with or in the place of the tenant, and is entitled to his rights and is subject to his disadvantages. Balfour v. Davis, 20 N.C. 443; Knight v. Smyth, 4 Maule and Selwyn, 347.
Wise v. Wheeler, 27 N.C. 196, and Lee v. Flannegan, 29 N.C. 471, were cited by the defendant's counsel as being in some measure opposed to the rule above laid down. But it will be seen, upon examination, that such is not the fact. The former case expressly admits the general rule in reference to landlords, and takes a distinction because John H. Wheeler did not profess upon the record to be the landlord; and inasmuch as no stranger has a right to defend with or in the place of the person in possession, the court inferred that Wheeler, upon the default of the person in possession, had been allowed, by the consent of the plaintiff, to make himself defendant, and was at liberty to take an independent position. In the latter the case states that Mary Flannegan was made defendant by the consent of the plaintiff, and no objection was made to her defense. So both these cases recognize the well-settled rule in regard to landlords. There is error in allowing the defendants to rely upon a ground of defense which was not open to Benton, the person in possession, for, except as his landlords, (382) they had no right to make themselves defendants, and, after doing so, they were bound to act up to the relation which they professed, in order to get the privilege of making defense.
There is some discrepancy between the record and the case made by the judge. This states, "This suit was commenced against Benton, and the defendants were allowed, by an order of court, to come in and defend." If a contradiction occurred, we should be bound by the record, because the province of the judge is simply to state the case; the record is sent to speak for itself. There is, however, no contradiction; the judge makes a general statement, which is reconcilable with the particular statement of the record.
It is probable the attention of his Honor was not directed to the statement in the record, that the defendants were allowed to defend as landlords, and because he thought the case within the decision of Wise v. Wheeler, and not under the general rule.
PER CURIAM. Judgment reversed, and venire de novo.
Cited: Whissenhunt v. Jones, 80 N.C. 349; Maddrey v. Long, 86 N.C. 385.
(383)