#### DEN ON DEMISE OF JOSEPH J. WILLIAMS *vs.*CHARLOTTE BENNETT.

A deed for land executed by a Clerk and Master by an order of the Court, under the act of 1836, Rev. Stat. c. 32, s. 18, conveys all the interest any of the parties to the suit had in the land, although another may be in possession claiming adversely.

The possession of a widow of land assigned to her as dower, is not adverse to the mortgagee of her husband or the assignee of the mortgagee.

The mortgagor is concluded by his deed, and, after its execution, his possession is by the consent of the mortgagee and is in law the possession of the mortgagee.

The widow’s estate in her dower land is but a continuation of that of her husband, and is affected by the same estoppels, which attached to it in the hands of the husband.

A mortgagor, or one claiming under him, is not entitled to notice to quit.

Even where a tenancy is construed to be from year to year, if, after the commencement of a year, there is an express lease for a certain time and an agreement to quit at the end of that time, this dispenses with notice.

The cases of *JBufferlow*v *Newsom,*1 Dev. 208, and *Fuller*v *Wadsworth,*2 Ired, 263, cited and approved.

Appeal from the Superior Court of Law of Martin County at Fall Term, 1843, his Honor Judge Baxley presiding.

*123This was an action of ejectment commenced on the 17th of February, 1842. On the trial it appeared that on the 16th of October, 1827, Eli Bennett executed to Joseph J. Williams, who is the lessor oí the plaintiff, and to William S. Rayner a mortgage for sundry slaves, and also for a tract of land in fee, of which the premises described in the declaration are part, for the purpose of securing the *payment*of certain debts to those persons and to others, for which they were his sureties. He died intestate in 1828 ; and Williams and Rayner, afterwards but at what particular time does not appear, sold the slaves under a power to that effect in the deed. Afterwards, but at what time does not appear, a bill was filed in the Court of Equity against Williams and Ray-ner, by the administrator and heirs at law of Eli Bennett, for an accouut of the mortgage debts and of -the proceeds of the effects sold, and for the .payment of any balance thereof that might be remaining in their hands, and for a redemption of the tract of land. In that suit a balance of $1281 78 was found to be still due to Williams in 1840, after applying all the mortgaged property except the land'; and, for the purpose of paying that balance, it was decreed, that the land should be sold by the clerk and master, and he accordingly made a sale to Williams, the lessor-of the plaintiff, at the price of g800, and, after the confirmation of the sale, and in obedience to an order in the cause, conveyed the land to him by deed bearing date the 2d of March, 1842.

After the death of Eli Bennett the present defendant, who is his widow, continued in possession of the mortgaged premises. The case states'.further, that on the trial she gave in evidence the record of a suit by petition instituted by her in the County Court for dower in those premises, as the widow of Eli Bennett; in which dower was assigned to her by a jury and finally adjudged in January, 1832; and that the defendant further gave evidence, that, under that judgment, she had ever since claimed and possessed the land allotted to her therein for dotner, as her own.

The plaintiff then proved, that, on the 1st of April, 1842, the lessor of the plaintiff let the .premises to the defendant for *124the residue of that year at a rent of one dollar ; for which gave her bond, expressed to be “ for the rent of the land whereon I now live, being the lands formerly belonging to estate 0f Eli Bennett.” And the plaintiff further proved by a witness, that it was then agreed by the lessor of the plaintiff and the defendant, that the lease was to terminate at the end of that year, and that the defendant should then surrender the premises to Williams. To this testimony of the witness the defendant objected, because it was not competent to vary the terms of the bond by parol.

The counsel for the defendant insisted, that she was in the adverse possession oí the premises, claiming under the allotment of dower, and therefore that the deed of the cleric and master did not pass any title to the lessor of the plaintiff. But the Court held that the deed was effectual to pass the title.

The counsel for the defendant further insisted that she was not estopped to deny the title of the lessor of the plaintiff, as her landlord, and set up title in herself, beecause she did not receive the possession from him; and that she did shew title in herself by the assignment of dower and her possession under it for more than seven years. Upon which the Court held, that the said possession of the defendant under such claim, without suit or claim by Williams or Ray-ner, would bar them, and give her a title for life in the premises allotted for her dower; but that, by acknowledging the title to be in the lessor of the plaintiff in 1842, and continuing her posssession that year under him and giving her bond for the rent, the defendant was estopped to deny his title.

The counsel for the defendant further insisted, that, if there was a tenancy between the parties, this action could not be maintained for want of notice to quit. But the Court held that notice was not necessary.

There was a verdict and judgment for the plaintiff and the defendant appealed.

No counsel for the plaintiff',

*Whitfiher*for the defendant.

*125RuffiN, C. J.

The act of 1836, Rev. Stat. c. 32, s. 18, sustains the opinion given by the Court on the first point, though it were true that the defendant’s possession was adverse. From the nature of a judicial sale, it would seem to form an exception to the rule, which forbids persons, out of possession and not acting under the mandate of the law, from selling merely the right. But this act in terms provides, that the deed of the clerk and master “shall be sufficient to convey such title, interest and estate as the party of record, owning the same, bad in the land.” Whatever interest, therefore, any of the parties to the suit had in the land, whether in possession or in right, passed by the sale and conveyance.

In relation to the second point, it is to be observed, in the first place, that it does not appear directly against whom the defendant brought her petition for dower. We cannot assume, however, that the mortgagees were parties; because, if it had been so, the defendant ought to have stated the fact explicitly in her exception, and doubtless would have done it and relied on her recovery as an estoppel on the lessor of the plaintiff, and not merely as color of title. We therefore take the recovery to be against the husband’s heirs alone. If so, we need not enquire, whether the defendant, supposing her to have become the owner of the premises by the statute of limitations, lost the benefit thereof and concluded herself, by taking the lease, as stated, from the lessor of the plainiiffin 1842. For she was bound bythe priorestoppel of her husband’s deed, andof the possession of her husband and herself under the mortgagees. The mortgagor was concluded by his deed ; and, after its execution, his possession is by consent of the mortgagees and is in law their possession. If it be continued so long, without payment of the interest or other recognition of the mortgage, as to raise a presumption of satifaction and a release, then indeed it may be insisted on as a title ; for that is consistent with the title of the mortgagees and supposes their title to be actually re-vested in the mortgagor. But, short of that, the possession of the mortgagor is that of the mortgagee; and the former is clearly estopped *126from acquiring a title from another person or by other means,' and setting; it up to defeat his own conveyance. There is ..... ... . . nothing m this case on which to found a presumption of sat-jsfacti0n or abandonment; for the parties were in some form constantly acting on the mortgage, and the fact, that it was not satisfied, was judicially found in a proper proceeding. The question then is, whether the possession of the widow of the mortgagor is held under the mortgagee or adversely to him. Clearly, we think, it is the former, whether she merely continues in possession after the death of the mortgagor as his widow, or holds a part of the premises as dower assigned to her. Both the heir and the widow are bound by the estoppel on the mortgagor ; the former as privy in blood, the latter as privy in estate. Tenant in curtesy and tenant in dower shall be bound by, and s.hall take advantage of, estoppels, as Lord Coke informs us. Co. Litt. 352. b. The widow but continues the estate and possession of the husband, which he held under the mortgagee, and cannot, therefore, set up an estate in any other person. *Bufferlow*v *Newsom,*1 Dev. 208. Neither can she set up title in herself by virtue of her possession as tenant in dower ; for in its very nature it is but a continuation of the husband’s estate, and is therefore affected by the estoppels, which attached to it in the hands of the husband. From those es-toppels *no*contrivances between the heir and the widow can set either of those parlies free. This case arose before the act of 1828, c. 14, Rev. Stat. c. 121, s. 6, allowing dower in an equity of redemption. Nevertheless, it might be quite proper, as between the heir and widow, that the latter should have her dower, in case the mortgagee did not choose to enforce his mortgage by taking possession. But the assignment could not release either the heir or the widow from those obligations of good faith, which constitute the foundation of the estoppel on the *mortgagor,*and arose out of the possession derived by him from the mortgagee, and through him derived also by the heir and widowfrom the mortgagee. The Court is therefore of opinion, that the defendant did not acquire any title, as against the lessor-of the ..plaintiff, by *127her possession ; and consequently that the plaintiff was titled to recover.

The point upon notice was, we think, decided right. A mortgagor or one claiming under him is not entitled to notice to quit. *Fuller*v *Wadsworth,*2 Ired, 263. *Keach*v *Hall,*Doug. 21. *Weaver*v *Belcher,*3 East, 449. But if this had been a tenancy from year to year up to 1842, the ex press lease in April for the residue of that year, and the agreement for the delivery of the possession at the end of it, fixed a definite term, which dispensed with further notice. *Messenger*v *Armstrong,*1 T. Rep. 54. *Coll*v *Stokes,*8 East, 358.

The parol evidence was not inconsistent with the bond, which did not profess to set out the particulars of the lease, nor the duration of the term.

Per Curiam, Judgment affirmed.