The plaintiff offered the evidence which was rejected, for the purpose of showing that he and defendant derived their title from the same source, Caleb Allen, and that the plaintiff was not required, if that be true, to prove a good and perfect title in Caleb Allen, from whom both titles were traced, upon the familiar rule that where the title of both parties is disclosed and found to have a *Page 357 common origin, the plaintiff, having the older of the two, is entitled to recover, unless the defendant shows that he has a better title than the plaintiff, which was derived either from the person under whom they both claim or from some other person who had such better title. It is not a case strictly of estoppel, but a well-settled rule of evidence, founded on justice and convenience. Johnson v. Watts, 46 N.C. 228; Ives v. Sawyer, 20 N.C. (Anno.), 179. It is generally expressed in this way, that where both parties claim title under the same person, neither is allowed to deny that such person had title; but the rule is subject to the qualification just stated, and does not mean that the defendant is estopped to connect himself by proof with the true owner. Caldwell v. Neely, 81 N.C. 114;Spivey v. Jones, 82 N.C. 179; Collins v. Swanson, 121 N.C. 67. In this case it appears that John Rogers contracted to buy the land from Caleb Allen and took possession of it by his tenant, the defendant, under his purchase. In Dowd v. Gilchrist, 46 N.C. 353, the defendant bought the land from Major Dowd and "took his word for a title." The Court held that "when the defendant entered under his contract of purchase from Major Dowd, he became his tenant at will, and as such could not dispute his title."Love v. Edmonston, 23 N.C. 152.
In Bigelow on Estoppel (5 Ed.), p. 547, we find it laid down that the relation of landlord and tenant is virtually created, so far as the question of estoppel is concerned, where a party enters into possession of land under a contract to purchase it; and such a person, until ousted or disturbed in his possession by one having a paramount title will not be permitted in an action for possession by the party under whom he entered to set up a title inconsistent with his. The doctrine of estoppel, with reference both to the grantee in a (452) deed and the purchaser under a contract of sale, as stated in Bigelow on Estoppel at pages 546-547, has received the approval of this Court, though the text-book was not cited. Drake v. Howell, 133 N.C. 163. See Farmer v. Pickens, 83 N.C. 550; Rountree v. Blount, 129 N.C. 25. As the plaintiff and defendant deduce their title from a common origin, the plaintiff from Caleb Allen by deed to the first grantee and mesne conveyances, and the defendant's lessor as the vendee under an executory contract of sale, this case is brought within "the inflexible rule of evidence," as Judge Ashe states it in Christenbury v. Kind,85 N.C. 230, that where both parties claim under the same person, neither of them can deny his right, and then, as between them, the elder is the better title and must prevail, unless (if the plaintiff has the senior of the two titles) the defendant can show a better title outstanding and that he has acquired it. McCoy v. Lumber Co., 149 N.C. 1; Sample v. LumberCo., 150 N.C. 161; Foy v. Lumber Co., 152 N.C. 595. It is the *Page 358 possession of the defendant, under his claim of right or title from the common source, whether by deed or lease, or what is the legal equivalent of a lease, a contract of purchase, that determines the application of the rule as is shown by the cases last cited. This does not deprive the defendant of the right to show that he has the better title, even as between the parties claiming only from a common source, or that he has, in some other way, acquired the superior title. The authorities merely declare that a plaintiff's case is made out when all that appears is that he and the defendant claim under the same common grantor, and the question is one of the state of proof only. They distinctly show that the defendant may overturn the plaintiff's case by showing a paramount title, under which he (the defendant) claims against that of the common grantor. Bigelow (5 Ed.), p. 346, and note 6. This case is governed by the ordinary rule, as the parties claim from a common source, and not otherwise.
That the contract between Caleb Allen and John Rogers, defendant's lessor, was not in writing, if that be the fact, can make no (453) difference. This is not an action by the vendor to enforce the performance of the contract by the vendee, and the statute of frauds is not involved. Cowell v. Ins. Co., 126 N.C. 684. The evidence is competent to show that defendant claims title from the same source as the plaintiff, and thereby, nothing else appearing, recognized the validity of the title thus asserted. Sample v. Lumber Co., supra;Bryan v. Hodges, 151 N.C. 413.
In this view of the case, the testimony offered by the plaintiff should have been admitted, and there was error in excluding it.
New trial.
Cited: Person v. Roberts, 159 N.C. 174.