#### DEM ON THE DEMISE OF MILLY JOHNSON *vs.*WM. WATTS.

Where both plaintiff and defendant derived title under a person once in possession, claiming the fee in the tract of land in dispute, neither is at liberty to show that such title is not still a good and subsisting one, unless one can show that he has acquired another and a better title from some <olher person.

*229Mttrphy v. Barnett, 1 Car. L. H. 105; Ives v. Sawyer, 4 Dev. and Bat. 51; Gilliam v. Bird, 8 Ired. 280; Love v. Gates, 4 Dev. and Bat. 363, and Copeland v. Sards, in this number cited.

This was an'action of ejectment, tried at Fall Term, 1853, of Martin Superior Court, before bis Honor Judge MaNLY. It was originally brought by William Johnson and wife against Peter E. Maddera, the tenant in possession. During the pendency of the suit, Maddera died, and the defendant Watts filed an affidavit as landlord, and was admitted to defend in place of Maddera. The plaintiff produced a deed from Joseph Biggs to William Mackey, dated in 1814, conveying An fee simple the lot in dispute, and proved that Mackey was in the actual possession of the lot until his death in 1818; that the plaintiff Milly Johnson was the only child and heir at law of Mackey, and was under age. After the death of Mackey, the lot was rented out by the guardian of Milly, and occupied under such renting until her marriage with Thomas Pollard, in 1825. After this marriage with Pollard, he kept possession until Maddera went into possession, and he continued the same until the bringing of this suit. At the time of the intermarriage of plaintiff Milly, with Thomas Pollard, she was under age: Pollard died in 1848, and shortly thereafter, she intermarried with William Johnson, who is since dead.

The plaintiff then introduced a bond, dated Ilth of January, 1828, executed by Thomas Pollard and George Pollard, payable to Peter E. Maddera, in the sum of four hundred dollars, reciting that, “ Whereas, the above bounden Thomas Pollard/ hath bargained and sold to the said Peter E. Mad-dera, lot number 39, in the town of Williamston, for the sum of ene hundred dollars, and is unable at present to make a legal title to the premises, in consequence of the wife of the said Thomas Pollard now being under age, and not eligible to convey real estate: now, should the said Thomas Pollard, when his wife comes of age, make and convey a legal title to the above named premises,” &c.-

*230And sbe insisted that Maddera, and consequently the defendant Watts, was estopped to deny her title.

The defendant produced a deed from Abner Cherry to Joseph Riggs, dated in 1810, for the lot in question, which did not convey a fee simple, because the word '‘heirs” was not used in the conveying part thereof, and it was proved that Joseph Riggs died in 1844. He also produced a deed' for the lot in dispute from Thomas Pollard to Maddera, dated in November, 1828, and' a deed of trust from Maddera to John Watts, dated in 1849, conveying-the same to secure the payment of debts due him.

The Court ruled that the defendant was not estopped to deny the title of the plaintiff; in submission to which opinion the plaintiff took a non-suit, and appealed to this Court.

*Biggs,*for plaintiff,

*Moore,*for defendant.

Rattle, J.

We cannot distinguish this from the ordinary case of two parties claiming under the same person, jn which neither can deny the title of him under whom they both claim. Murphy v. Barnett, 1 Car. Law Repos. 105. Ives v. Sawyer, 4 Dev. and Bat. 51. Gilliam v. Bird, 8 Ired. 280. Maddera, under whom the defendant Watts claims, certainly derived title from Pollard, the first husband of the plaintiff’s lessor, who was the heir at law of William Mackey. Maddera could not then deny the title-of Mackey. The termination of Maddera’s title by the death of Pollard could make no difference, because it does not appear that he ever claimed under any other title than that derived from Pollard. When sued in ejectment, therefore, by the plaintiff’s lessor, he could not deny her title, as is clearly shown by the above recited case of Ives v. Sawyer. Indeed, the only difference between that case andthe present is, that the wife did not join ineffectually in. the-*231conveyance of her husband. The defendant, in a case like the present, can defend himself only by showing that he has a better title in himself than that of the plaintiff’s lessor, derived, either from the person from whom they both claim, or from some other person who had such better title. Love v. Gates, 4. Dev. and Bat. 363, and Copeland v. Sauls, decided at the present term. It is not a case strictly of es-toppel, but one founded in justice and convenience.

Nor js the present a case of landlord and tenant, as the defendant’s counsel has contended, where the landlord’s title has expired, but depends upon the just and convenient principle above stated. As both parties derived title under William Mackey, who was once in possession claiming the fee, neither is at liberty to show that such title is still a good and subsisting one. Unless the defendant can show that he has in himself the outstanding title of Cherry’s heirs, the the lessor of the plaintiff must recover. The judgment of non-suit must be set aside, and a *venire de novo*awarded.

Jugment reversed.