Bishop v. . Minton

Bukwell, J.: 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 Cal-loway, who surrendered the deed without having it registered, and also executed a quitclaim deed therefor to Min-ton, 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 defence. 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 *529 plaintiff did “adviso or induce the defendant to buy the land before lie 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 defence. We see no reason why the action should have boon 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.