Doe on the Dem. of Eaton v. George , 48 N.C. 385 ( 1856 )

The lessors of the plaintiff showed title to the land in question, under one Hardy Carroll, who was the trustee of the lessor, Jas. Eaton; they showed that the defendant claimed a right to the possession under one JohnL. Bitting, who professes to have bought also from Hardy Carroll, the trustee. The defendant alleged that he had entered, by virtue of a parol agreement with Bitting, but showed no deed or conveyance from Carroll, nor did he show that he, Bitting, had ever paid the purchase money; all he produced on the point was a certificate from Carroll, the trustee, dated 3rd of October, 1843, stating that he had sold the land in question to John H. Bitting, agent of John L. Bitting, and an order, in favor of Bitting, from Eaton, the grantor, to the trustee, for the surplus of the money, after the satisfaction of his debts, which was accepted on the same day, (3rd of October, 1843.) The case states that the defendant was in possession before this sale.

The defendant contended that he was entitled to notice to quit. This question was reserved by his Honor, with leave to set aside the verdict, if he should be of opinion with defendant, and after further instructions, which were not excepted to, the jury found a verdict for the plaintiff.

On the question of law reserved, his Honor, being of opinion with the defendant, set aside the verdict and ordered a nonsuit; from which judgment plaintiff appealed. The only question presented in the bill of exceptions is, whether the plaintiff was entitled to recover, without showing that he had given the defendant notice to quit, or had demanded the possession of him before commencing his suit. A notice to quit, or demand of possession, can never be necessary, unless the party claiming it entered into possession, as a tenant of some kind to the lessor of the plaintiff. Here, the defendant entered under the authority of John L. Bitting, who claimed as a purchaser, and not as a tenant of any kind. The entry, unfortunately for the defendant, was made before his landlord had obtained a conveyance of the title, and, so far as we can see, before he had paid the purchase money. It does not appear that he entered with the consent of the vendor, so as to make him a quasi tenant at will, according to the cases of Jones v. Taylor, 1 Dev. 434; Walton v. File, 1 Dev. and Bat. 567. He was, therefore, in law,' a trespasser, and might be so treated, by the person in whom was the legal title, bringing an action of ejectment against him. Not being a tenant for years, or from year to year, or at will, or even by sufferance, there can be no pretence, that a notice to quit or demand of possession should be shown, before the suit was brought.

The judgment of nonsuit must be reversed and judgment must be entered on the verdict, in favor of the plaintiff.

PER CURIAM. Judgment reversed, and judgment entered for the plaintiff.