Pate v. . Turner

Smith, C. J. (after stating the facts). We find no error in these rulings.' The two material questions of fact in reference to the original renting, and the attempt to change the tenancy, and continue the defendant’s possession, were for the jury to pass .on, and were properly left to them. The transaction of Gray was with the plaintiff apparently acting for himself, and his mother’s name was not mentioned in the transaction. So, the rent was in like manner paid to him, as if he were entitled to it. This was certainly some evidence of his personal relation to the contract, and its weight has been passed on by the jury. Perhaps the jury might have been warranted in drawing the inference from the possession of title, that the lease was for the owner, as upon the evidence they are in finding it to be the personal transaction of the plaintiff. 2. The nature and effect of the eviction was also properly committed under restrictions to the jury, and these instructions are certainly not unfavorable to the defence. The attorney who had been defending the action from its beginning, institutes his action for possession against the defendant, and she makes no resistance to judgment as did the other defendant, the present plaintiff, as to whom the nol. pros, was entered. No anger was excited in executing the process for dispossessing her. She spoke of her confidence in her attorney’s kind disposition; her household goods were left in the house undisturbed while the eviction was going on; the defendant re-enters under a new contract with the one who has dispossessed her, and remains to set up the new defence. It. certainly cannot be contended that these facts furnish no evidence of collusion, that is, of a course of action which shall *55 keep her in possession, and enable her to violate the well-settled rule, that a tenant obtaining possession under a contract of lease, must restore the possession to him who gave it before she can set up title in herself or in any one else. This is the general rule. But if evicted by process of law, or yielding to the demand of one who has a paramount title, the landlord’s action may be resisted by showing the fact. But an essential condition is the existence of a superior title in the claimant evicting or. entering. Bigelow on Est., 407. Here no proof whatever was offered of a superior title, and no opposition made to the judgment. It is in substance, a voluntary act of submission to an unsustained demand, and can no more remove the obligation to surrender, than the execution of a deed, and recognition of its efficacy as a protection. The rule which forbids a tenant who has been let in possession by a contract of lease from disputing the landlord’s title without restoring the possession after the termination of his lease, “is founded,” in the words of PIeít-deRSOjS", Chief-Justice, “on high grounds of morality and good faith, and at all times ought to be rigidly adhered to, where circumstances require its application.” Yarborough v. Harris, 3 Dev., 40, and this is repeated by Ruffin, Chief-Justice, in Burwell v. Roberts, 4 Dev., 81. The rule applies with equal force to a lessee’s assignee or under tenant. Lunsford v. Alexander, 4 Dev. & Bat., 40; Callender v. Sherman, 5 Ired., 711. A lessee cannot deny his lessor’s title, until discharged from the estoppel, by yielding up .possession to the lessor; nor will his acceptance of a lease from another lessor enable him to do so, Freeman v. Heath, 13 Ired., 498, unless when he has been evicted and afterwards let in possession by a new and distinct title of a new landlord, and this bona fide. Gilliam v. Byrd, Busb., 95. An exception to the rule is, that where a lessee could have gone into equity and obtained an injunction against being turned out of possession, upon some equitable grounds. He may now set *56 this equity up in an action by the landlord. Turner v. Lowe, 66 N. C., 413; Davis v. Davis, 83 N. C., 71. While, therefore, we find no error in the ruling, it would be obviously unjust to give a conclusive effect to a finding and judgment, that title is in the plaintiff, which, as res adjudieata, would preclude all future inquiry into the title, when the result is produced by an estoppel, which only prevents a retaining of the tenant’s possession. Upon the admitted evidence in this case, the moiety in the land descending to the defendant as one of two heirs-at-law as co-tenant, the plaintiff, incurs the disability of contesting his claim of ownership upon a technical rule growing out of her husband’s lease and acquirement of the possession — continuing in consequence of her continuance in occupancy. In this case the verdict rests wholly upon the estoppel, and the judgment, without finally determining the title, should be merely for the recovery of possession and damages, leaving the defendant free hereafter to assert and maintain her own title. The judgment thus modified must be affirmed. No error. Affirmed.