Ejectment commenced 17 February, 1842. On the trial it appeared that on 16 October, 1827, Eli Bennett executed to Joseph J. *Page 97 Williams, who is the lessor of 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 Rayner by the administrator and heirs at law of Eli Bennett for an account 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 $1,281.78 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 $800, 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 2 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 dower as her own.
The plaintiff then proved that on 1 April, 1842, the lessor of (124) the plaintiff let the premises to the defendant for the residue of that year at a rent of $1, for which she gave her bond expressed to be "for the rent of the land whereon I now live, being the lands formerly belonging to the estate of 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 of the premises, claiming under the allotment of dower, and therefore that the deed of the clerk 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. *Page 98
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 because she did not receive the possession from him, and that she did show 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 Rayner, 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 possession 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. The act of 1836, Rev. Stat., ch. 32, sec. 18, sustains the opinion given by the court on the first point, although 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 had 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 inquire 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 plaintiff in 1842, for she was bound by the prior estoppel of her husband's deed and *Page 99 of 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 satisfaction 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 revested in the mortgagor. But short of that, the possession of the mortgagor is that of the mortgagee, and the former is clearly estopped from acquiring a title from another person or by other (126) means and setting it up to defeat his own conveyance. There is nothing in this case on which to found a presumption of satisfaction 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 courtesy and tenant in dower shall be bound by and shall take advantage of estoppels, asLord Coke informs us. Co. Litt., 352 b. The widow but continues the estate and possession of the husband which she held under the mortgagee, and cannot therefore set up an estate in any other person. Bufferlowv. Newsom. 12 N.C. 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 estoppels no contrivances between the heir and the widow can set either of those parties free. This case arose before the act of 1828, ch. 14, Rev. Stat., ch. 121, sec. 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 widow from the mortgagee. The court is therefore of opinion that the defendant did not acquire any title, as against the lessor of the plaintiff, by her possession, and consequently that the plaintiff was entitled to recover. (127) *Page 100
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,24 N.C. 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 express 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 Term, 54; Cobb 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. No error.
Cited: Grandy v. Bailey, 35 N.C. 223; Johnson v. Prairie, 94 N.C. 780;Love v. McClure, 99 N.C. 295; Coor v. Smith, 101 N.C. 262;Killebrew v. Hines, 104 N.C. 195; Hinson v. Smith, 118 N.C. 507; Atwellv. Shook, 133 N.C. 392.