The plaintiff having the legal title is consequently entitled to a recovery in this action. The case cited from Cowper went upon the ground of the plaintiff's attempting to defeat a solemn deed under his hand, whereby he covenanted to let the defendant enjoy the premises; but that is very different from the case of an heir who has done nothing to impair his title.
Verdict for the plaintiff.
NOTE. — See acc. Jiggitts v. Maney, 5 N.C. 258, which also decides that if there is a new publication of the will after the purchase, the land may pass.