Richardson v. . Thornton

Both parties admitted that the title to the premises was in one Calvin Simpkins. On 27 January, 1855, he entered into a contract, in writing, to convey the same to one Richard Hamlet on the payment of the last five certain bonds of $600 each, given for the (459) purchase money, which would fall due on 1 January, 1860. It was verbally agreed between the parties that Hamlet should immediately take possession and have the occupation of the premises on the execution of the bonds for the price. He did accordingly take possession, and remained therein, carrying on the business of hotel-keeping for fourteen months, when he leased the premises back to Simpkins for the residue of 1856.

Sometime in August, 1856, the property was sold by virtue of a judgment and execution against Simpkins, and purchased by the defendant Thornton, who was then in possession of it as the servant of Simpkins. Thornton from this time, carried on the business in his own name, Simpkins also remaining on the premises. On 28 August, 1857, Thornton took a deed from the sheriff, and continued such occupation until this suit was brought in September, 1857. Simpkins left in April, 1857.

On 16 February, 1857, Hamlet, for value, assigned to the lessor of the plaintiff all his right, title, claim and interest in and to the said bond. And it was contended that the defendant having entered into the premises as a servant under Hamlet's lessee, Simpkins, he was estopped to deny the title of the landlord to which he succeeded.

It was contended by the defendant that Richardson got nothing by his purchase in February, 1857, for that defendant's title and possession went back to August, 1856, the time he purchased the property. On this state of facts, which was agreed, it was submitted to the judgment of his Honor whether the plaintiff was entitled to recover. He decided against the plaintiff, whereupon he took a nonsuit and appealed. It has long been a settled rule that a deed executed by a sheriff for land, sold by him under execution, relates to the time of the sale, and operates from that time against any subsequent transfer, whether made by the party himself or by the sheriff under an execution of a later teste against the party. Dobson v. Murphy,18 N.C. 586; Festerman v. Poe, 19 N.C. 103. It cannot, indeed, so operate as to support an action of ejectment, or of trespass quareclausum fregit commenced before the purchaser, who is not in possession, has taken his deed from the sheriff. Davis v. Evans, 27 N.C. 525;Presnell v. Ramsour, 30 N.C. 505. But where the purchaser, under execution takes possession immediately after the sale, we can perceive no reason why the sheriff's deed, afterwards made to him, should not relate to the time of the sale, so as to annex the title to his possession from the time as against any transfer subsequent to such sale.

Seeing the strength of this position, the lessor of the plaintiff has sought to assail it by contending that Hamlet, to whose rights under the contract of purchase from Simpkins he succeeded, acquired the possession of the land as a lessee by a parol agreement with the latter, until the time when the last bond for the purchase money should be paid, which possession he had the right to regain from the defendant in the present action. To this the counsel for the defendant makes the unanswerable reply that whatever may have been the equitable rights of Hamlet, or of the plaintiff's lessor as his assignee, each was, in law, but the tenant at will of the vendor, Simpkins, and as such could not maintain ejectment against him or against the present defendant, who became invested with all his legal rights by his purchase under an execution against him. Love v. Edmunston, 23 N.C. 152. The idea that Hamlet, by parol agreement with Simpkins, became more than a tenant at will, to wit, a tenant for five years from 1855, when his contract of purchase was made, until 1860, when the last bond of the purchase money become due, cannot prevail, because such contract, if made, was void and of no effect under the statute of frauds, (461) Rev. Code, ch. 50, sec. 11.

Concurring in the opinion given by his Honor in the court below, that the action cannot be maintained, the judgment of nonsuit is

PER CURIAM. Affirmed.

Cited: Young v. Griffith, 84 N.C. 718.