Guilford County NcArchives Court.....Murphy, Vs. Barnett 1811-18 ************************************************ Copyright. All rights reserved. http://www.usgwarchives.net/copyright.htm http://www.usgwarchives.net/nc/ncfiles.htm ************************************************ File contributed for use in USGenWeb Archives by: Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 June 12, 2008, 11:31 pm Source: North Carolina Reports Written: 1811-18 January Term 1813. Den on Demise of ARCHIBALD D. MURPHY v. JOSEPH BARNETT. From Guilford. When both parties claim under the same person they are privies in estate, and cannot, as such, deny his title. Therefore, where in an ejectment it appeared that the defendant had accepted a deed from the same person under whom the plaintiff claimed, he was estopped to deny title in this person. In this case a verdict was found for the plaintiff, and a rule for a new trial being obtained, the case was that T. Dixon, being seized of the lands in question, agreed to sell them to W. Dixon, to which end he made a power of attorney to C. Dixon. W. Dixon took possession of the lands under the agreement, and contracted to sell them to Thomas Barnett, who entered accordingly. Upon which C. Dixon, intending to execute the power of attorney, did, at the request of W. Dixon, seal and deliver a deed of bargain and sale to Thomas Barnett, as assignee of W. Dixon. The deed was signed by C. Dixon, attorney in fact for T. Dixon. A judgment was recovered against Thomas Barnett in the County Court of Caswell, on which a fi. fa. issued, which was levied on the land, and at the sale of the land made by the sheriff the lessor of the plaintiff became the purchaser, and received a deed from the sheriff. A short time before the fi. fa. was issued. Thomas Barnett executed to his son, the defendant in this case, a deed for the land. The defendant entered and was in possession, claiming title, when the sheriff sold. The demise laid in the declaration was in the name of A. D. Murphy; and it was objected on the trial that it appeared from the plaintiff's own showing that the legal title to the land was in T. Dixon; for although he had empowered C. Dixon to execute a deed to W. Dixon, he had not empowered him to execute it to Thomas Barnett; and, therefore, the power not having been executed, the title still remained in T. Dixon. To this it was answered, that although this objection might be urged with success under other circumstances, yet, situated as the defendant was, he could not be permitted to insist that Thomas Barnett had not title, for it appeared in evidence that he himself had accepted a deed for the land from Thomas Barnett, and had entered and claimed title under the deed; that, therefore, he was estopped from denying title in Thomas Barnett. And of this opinion was the court. The jury found that the deed made by Thomas Barnett to the defendant was fraudulent against creditors, and rendered a verdict for the plaintiff. Upon a rule for a new trial the case was sent to this Court, on the question of estoppel. Taylor, C. J. We think the decision of this case rests on a plain principle of law; and that as both parties claim directly from Thomas Barnett, they are privies in estate, and it is not competent, to either, as such, to deny his title. The defendant has accepted a deed from him, which admits the title and estops him from denying it afterwards, for a person may bo estopped by matter in pais as well as by indenture or writing. The doctrine as applied to this case appears highly reasonable, since nothing but the truth ought to he alleged by any man in his defense, and what he has alleged must be presumed to be true, and he ought not to contradict it. Let the rule for a new trial be discharged. Cited: Ives v. Sawyer, 20 N. C., 181; Love v. Gates, ib., 499; Duncan v. Duncan, 25 N. C., 318; Gilliam v. Bird, 30 N. C., 283; Copeland v. Sauls, 46 N. C., 73; Johnson v. Watts, ib., 230; Feimster v. McRorie, ib., 549; Spivey v. Jones, 82 N. C., 181; Ryan v. Martin, 91 N. C., 469. Additional Comments: North Caroline Reports, Vol. 6, Cases Argued and Determined in the Supreme Court of North Carolina, Reported by A.D. Murphey, Annotated by Walter Clark. 1811 to 1813, Inclusive and at July Term, 1818. Reprinted by the State. E.M. Uzzell and Company, State printers and binders, 1910. File at: http://files.usgwarchives.net/nc/guilford/court/murphy559gwl.txt This file has been created by a form at http://www.genrecords.org/ncfiles/ File size: 4.6 Kb