#### DEN ex DEM. of SAMUEL S. ROSS *v.*ACHILLES DURHAM.

Dec. 1838.

Where two persona "purchase jointly from the same vendor, and enter into possession of a tract of land as tenants in common, and itfter a common possession of several years, execute an agreement under their hands and seals, in which they acknowledge that they hold the land as tenants in common, it cannot be permitted to either of them, or to any other person claiming under either of them, until the rights thereby acknowledged shall be divested or changed, to set that possession up as hostile to the title of his co-tenant. And in such case if one of the tenants in common convey by deed the whole land to another person, and recite in the *deed*that *he, the*vendor, had title to the whole, and the purchaser is ignorant of the tenancy in common, it will not prevent the rule of law from attaching. The estoppel applies to the purchaser by reason of his privity with and under his vendor, not because of personal ill faith.

A deed for the whole land made by one tenant in common to a third person, is color *of*title, under which a possession by the purchaser for a sufficient leij^th of time would divest the title of his co-tenant.

An agreement made by two persons in possession of a tract of land under a joint purchase in which they acknowledged under their hands and seals that they were tenants in common of all the lands which they had purchased from their said vendor, estops both of them from denying that their vendor had title to the land, and also estops each from averring any antecedent , matter to show that the other had no title.

This was an action of Ejectment tried before his Honor Judge Nash, at Rutherford, on the last spring circuit. The lessor of the plaintiff in order to show title to the land in dispute, offered to produee in evidence a deed from one Peter Fisher to himself and one Jacob Fisher, bearing date in 1809, which deed was objected to because it had not been duly proved, as appeared from the certificate of registration. The objection was sustained by the Court when the plaintiff’s lessor proved its execution, and offered it in evidence as color of title, and showed a possession of the land under it from the year 1809 until 1818 or 1819; and he further offered in evidence a deed from Jacob Fisher to the defendant, executed in November 1837, and proved the defendant to be in possession. The deed from the said Jo'cob to the defendant recited that the land was conveyed to said Jacob from the Marshall of this State. The deed' from the Marshall referred to bore date in 1811. The plaintiff’s lessor introduced also an agreement under seal between the said-Jacob Fisher, and himself, executed on the 10th day of April *551817, wherein it was witnessed “that Samuel S. Ross and Jacob Fisher both of the county of Rutherford and State of North Carolina, have mutually agreed and finally adjusted all their suits at law, and all matters and things of whatsoever nature from the beginning of the creation unto the pre* sent date, and both acknowledge the following statement to be correct, and the true meaning of their settlement, to wit: the said Samuel and Jacob are to be joint owners and equally interested in all the land or tracts of land conveyed by Peter Fisher to the said Samuel and Jacob, to wit, &c.,” mentioning the land in controversy and other tracts. The deed from Peter Fisher to the plaintiff’s lessor and Jacob Fisher was not registered till the year 1831, and it did not appear that the defendant when he purchased from Jacob Fisher in 1827, had any knowledge of its existence. It also appeared in evidence that Peter and Jacob Fisher were in possession of the said land from the year 1804, and continued in possession until 1818, and also that the plaintiff’s lessor removed from the land in 1818 or 1810 and went .to South Carolina, and in the year 1831 instituted this suit.

It was denied on the part of the defendant that the deed from Peter Fisher to the plaintiff’s lessor and Jacob Fisher bearing date in 1809, had ever been delivered, and if it had, the defendant contended that the plaintiff’s lessor had by solemn acts and declarations disavowed title under it, and he offered in evidence first a bill of injunction sworn to and filed by the plaintiff’s lessor in Rutherford Court of Equity in 1814 against Peter Fisher and others, alleging a want of title in the said Peter to the said land, and praying relief from the payment of the purchase money therefor. And to repel the effect of the compromise executed on the 10th of April 1817, the defendant offered in evidence an instrument of writing executed on the same day, and proved that it was executed at the same time by the plaintiff’s lessor and the said Jacob Fisher, and insisted that the land in question was excluded from the compromise, and the matter left at large. The said instrument of writing was in these words : “ It is hereby understood that the agreement made and concluded by Samuel S. Ross and Jacob Fisher on the 10th of April 1817, respecting their controversies, is to have no effect as *56to the suit Mark Bird’s heirs v. Jacob Fisher and Peter Fisher and Samuel S. Ross agent or Attorney for said heirs : said suit is to stand in as full force as though there had no agreement taken place between said parties. This is ac-]aiowjec|gec{ by ¿e parties to be our act and deed on the 10th April 1817.” The defendant also offered in evidence a record from Rutherford Superior Court, from which it appeared that the plaintiffs lessor as Attorney in fact for Mark Bii'd’s heirs instituted an action of ejectment on behalf of said heirs against the said Peter and Jacob Fisher for the land in controversy in the year 1812, and prosecuted the same until 1818 and afterwards. It was also proved on the part of the defendant, that the administrator of Mark Bird recovered a judgment in the year 1810 or 1811 against Peter Fisher, that the plaintiff’s lessor purchased said judgment and instructed the Sheriff to sell the land in question under the execution on said judgment then in his hands, and that the Sheriff did so, when Jacob Fisher became the purchaser and took a deed from the'Sheriff dated in 1812, which deed the defendant offered in evidence and relied on. It did not appear that the land in dispute had ever been granted by the State.

For the lessor of the plaintiff it was insisted that the seven years’ possession under color of title made his title a perfect one. It was also insisted for him, that by the agreement aforesaid and the deed taken by defendant from Jacob Fisher, and the deed from the Sheriff to Jacob Fisher in 1812, the defendant was estopped from denying that the title was out of the State and in Peter Fisher.

For the defendant it was insisted, that the deed from Peter Fisher to the plaintiff’s lessor and Jacob Fisher had never been delivered, and if it had that the plaintiff’s lessor had disavowed title in Peter Fisher by his bill of injunction, by his prosecuting a suit as Attorney in fact for Bird’s heirs for said lands against said Peter and Jacob Fisher, and by his purchasing the judgment aforesaid, and causing the land to be sold by the Sheriff. And it was also insisted that it was a fraud in the plaintiff’s lessor to cause the land in question to be sold to satisfy his own execution, and thereby mislead and entrap an innocent purchaser. The defendant *57contended further that the agreement of the 10th of April 1817 relied on by the plaintiff’s lessor was rendered inoperative as to the land in dispute by the other agreement executed at the same time, and that at most it could only raise an equity, and could not operate as an estoppel; that as the plaintiff’s lessor had introduced the deed from Jacob Fisher to the defendant, which recited that said Jacob claimed under a deed and sale made by the Marshall for taxes, such recital was evidence for the defendant' and showed that said Jacob did not claim under either Peter Fisher or the plaintiff’s lessor ; that a seven year’s possession under color of title without showing a grant from the State, would not ripen an imperfect title into a perfect one ; and that as to the Sheriff’s deed he the defendant was not estopped as he claimed under both creditor and purchaser.

His Honor charged the jury that delivery was essential to every deed, but that when a deed was produced by him to whom it purports to have been made, the presumption of law was that it was rightfully in his possession, and threw upon the party denying its delivery to show by sufficient evidence that it never had been delivered. That if in this case the defendant had satisfied them that the deed from Peter Fisher to the plaintiff’s lessor Ross, and Jacob Fisher never had been delivered, they would lay it aside altogether in the consideration of the case, that if on the contrary they should be satisfied from the evidence that it had been delivered, then the plaintiff’s lessor and Jacob Fisher became tenants in common, and each was estopped to deny title in Peter Fisher so far as the other was concerned, and that the estoppel extended to all claiming under them. That possession under the deed from Peter Fisher for seven years ripened the title into a good and valid one, and rendered it unnecessary for the plaintiff’s lessor in this casé to produce a grant from the State. His Honor instructed the jury further that so far as Jacob Fisher or those claiming'under him were concerned, the plaintiff’s lessor was not deprived of any right which Peter Fisher’s deed vested in him, by the filing of the bill in equity or the other facts relied on by defendant’s counsel that the deed of agreement made in April 1817 between the plaintiff’s lessor and Jacob Fisher, if it did not *58operate as a common law conveyance, was an acknowledge ment on the part of Jacob Fisher that the plaintiff’s lessor was a tenanl in common with him, at least from that time in the land mentioned in the agreement, (and the land now in controversy was so mentioned) and estopped the said Jacob and all claiming under him from denying it; that as to the defeasance to that deed relied on by the defendant, it related to *the*suit then pending in the name of Bird’s heirs against the Fisher’s, and not to the land now in dispute. That as to the recital in the deed from Jacob Fisher to the defendant that the land was derived under a deed from the Marshall, that deed bore date before the compromise and agreement of 1817, and could not alter the relation in which the parties stood to each other at that time. The lessor of the plaintiff had a verdict and judgment, and the defendant appealed. *

Execution includes_ ancT when o/Vdéed as a fact execution was. jj>rov-that such was^offer-tablfshed its delivery cíe!”*ifi?" Sepro duction of *59tlietleeai) one of the with testimony of long Sñder £it°£ cir_ cumstanee the°prima

*58
      *D. F. Caldwell*for the defendant.

*Clingman*for the lessor of the plaintiff.

Gastoh Judge.

The case does not set forth the evidence which was given respecting the execution of the deed from Peter Fisher to Jacob Fisher and the lessor of the plaintiff, and therefore it is impossible for us to say positively whether there is or is not error in that part of his Honor’s instruction which relates to the delivery of the deed. Exe-cud°n includes delivery and when it is stated as a fact that “its execution was proved,” we must understand'that such evidence was offered as established its delivery *•prima facie*an<^ unt^ evidence was contradicted or impeached. If it were then certainly the production of the deed by one of the grantees accompanied with testimony of long possession un(jer ft ft a Very strong circumstance to confirm the *prima*proof of delivery.

If this action had been brought against Jacob Fisher, *it*plain we think that the plaintiff would be entitled to recover- Not only had the lessor of the plaintiff and the said Jacob entered into the possession under one and the same claim of title, a deed from Peter Fisher to them as tenants in commoil‘ but on the 10th April 1817, after they had been thus in possession for more than eight years, they executed *59an instrument which they called an agreement under their hands and seals for the avowed purpose of settling and con-eluding all controversies which had theretofore existed between them, whereby they do acknowledge, declare and agree “that they the said Samuel and Jacob are to be joint owners and equally interested in all the land and tracts land conveyed by Peter Fisher to the said Samuel and ' , ,it cob. It could not be permitted to either of them, holding possession after this solemn declaration, until the rights thereby acknowledged should be divested or changed, to set that possession up as hostile to the title of his cotenant. It follows we think that the defendant having succeeded to Jacob Fisher’s possession, and coming into that possession him, is equally estopped from denying the right of the lessor of the plaintiff.

Where an ^-Tmade Pur-pose of set-tiing all *60controversies between them, and in which they ac-knowledg-ed among other things that íhnLTf L tenants m common of allthelands th^had purchased from C, a memorandum endorsed on the agreement by the parties that it was not to extend to the suit of D’s heirs and'cf E’ “ and A, attofney01 heirs)”1 understood to except operation grcement' the ac-^ common111 in the said land between A, though the heirs°fo?'S whom A, wasfof the game land.

*59The declaration in Jacob Fisher’s deed to the defendant that *he*had a title to the whole — or the ignorance of the defendant with respect to the right of the lessor of the plaintiff at the time when that deed was made, does not prevent the rule of law from attaching. The estoppel applies to the defendant by reason of his priority with'and under Jacob Fisher, not because of personal ill faith. Jacob Fisher’s deed was indeed a *color*of title under which a possession by the defendant for a sufficient length of time, would divest the title of the plaintiff’s lessor. But until that title was divested, it was sufficiently established against Jacob Fisher and those coming in afterwards under Jacob Fisher by showing the avowed cotenancy with him.

A brief notice will be all that is necessary of the other points in the case. The statements made in the bill in Equity filed by Ross could only be material as evidence to show that Peter Fisher had not a good title at the date of his deed. But this would not effect the title of the plaintiff’s lessor because the defandant was not at liberty to dispute that title. The construction which .the Judge placed on the proviso or memorandum attached to the agreement was the only one it could bear. As to the Marshall’s deed — and the sale by the Sheriff under the judgment of Bird’s heirs against Peter Fisher, which judgment had been bought by Ross — • , 11 ii ,, is enough to say that these as well as the bill m equity, *all*
      *60occurred previously to the execution of the judgment of the 10th April 1817, and all claims and contests under or by reason of them, were by that instrument *concluded.*7 *J*

We are of opinion that the judgment ought to be af-*n*v firmed,

Per Curiam. Judgment affirmed.