The plaintiff then introduced a bond, dated 11th 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. Maddera, lot number 39, in the town of Williamston, for the sum of one 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. *Page 230
And she insisted that Maddera, and consequently the defendant Watts, was estopped to deny her title.
The defendant produced a deed from Abner Cherry to Joseph Biggs, 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 Biggs 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. We cannot distinguish this from the ordinary case of two parties claiming under the same person, in 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 and the present is, that the wife did not join ineffectually in the *Page 231 conveyance 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 estoppel, but one founded in justice and convenience.
Nor is 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.
Judgment reversed.