FROM WASHINGTON. The locus in quo was a cypress swamp, which had never been in the actual possession of any one.
The plaintiff offered no evidence of title, but the will of one Eleazer Swain, by which the land was devised to his son, Thomas Swain, and a judgment and execution against the latter, with a sheriff's deed to himself. He then offered to prove that Thomas Swain and the defendant, under his pretended title, entered upon the land, and (178) got a large quantity of shingles, for which trespass the action was brought.
But his Honor, thinking that the plaintiff, to entitle him to recover, ought either to prove an actual possession or a good and sufficient title, to give him a constructive possession, and that although Thomas Swain might be estopped to deny his title, yet that the estoppel did not extend to the defendant; nonsuited the plaintiff, who appealed to this Court. I think the Judge erred in not extending the estoppel to Blount, for the case states that Swain and the defendant, under Swain's pretended title, entered upon the land. Now it appears to me that if Swain is estopped from setting up title in himself, that Blount, who acted under that title, or to use the words of the case, pretended title of Swain is equally estopped; and that a title by estoppel will, as to them estopped, as well as a title against the world, drawn to it the possession. Which constructive possession, according to our notions, supports the action of trespass.
PER CURIAM. New Trial.
Cited: Sikes v. Basnight, 19 N.C. 157; Drake v. Howell, 133 N.C. 165. *Page 112
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