#### JOHN SIKES, et al. v. LEMUEL BASNIGHT.

A person claiming title under one who is estopped, will also be bound by the estoppel.

He who claims title to land by estoppel, is, as to those estopped, in the constructive possession of the land; and in an action of trespass, no one who is bound by the estoppel can prove a superior title in a stranger, unless the court be satisfied that such trespasser at the time he entered, did not claim title under the deed by which he is estopped; in which case, the evidence would be admissible to show that he was accountable in damages to the stranger who had the better title, and not to the plaintiff.

The case of Phelps v. Blount, 2 Lev. Rep. 177, approved.

This was an action of trespass quake clausum pregit, to which the defendant entered the pleas of “general issue; liberum ten ementum ; and statute of limitations.” Upon the trial at Tyrrell, on the last Spring Circuit, before his Honor J udge Dick, the plaintiffs deduced title by a regular chain of conveyances, from one Daniel Sawyer to themselves; and then exhibited a deed from the said Daniel Sawyer to the defendant, for the land on which the trespass was committed, of a younger date than the deed under which they claimed. Neither party appeared to have been in actual possession farther than by getting shingles on the land, which was a juniper swamp. The defendant then offered in evidence a grant from the state to one Belangee, of older date than either the deed from Sawyer to the plaintiffs, or that to himself; but showed no title out of Belangee. The plaintiffs objected to the introduction of this grant; alleging that the defendant was estopped to deny the title of Sawyer, under whom both parties were claiming’; and contending that he should not, in this action, be allowed to show title in another person, and out of them both. His Honor overruled the objection ; and the plaintiffs submitted to a judgment of nonsuit and appealed.

Heath, for the plaintiffs.

Iredell, for the defendant.

Daniel, Judge.

Phelps v. Blount, 1 Dev. Rep. 177, was *158a case like the one now before the court. It was an action of trespass quare clausum, fregit. The court then decided that one claiming title under a party who is estopped to deny the title of the plaintiff, is also bound by that estoppel. And that he who claims a title by estoppel, is, as to those estopped, in the constructive possession of the land, and may maintain trespass. Daniel Sawyer was estopped by his deed, to deny the right of the plaintiff. The plaintiff, to estop the defendant from introducing in evidence the patent to Belangee, showed forth a deed from Daniel Sawyer to the defendant, for the lands trespassed on, of a younger date then the one to himself. The plaintiff contended, that as he and the defendant loth claimed the lands under Sawyer, the defendant could not in law be permitted to introduce evidence of a title in a third person. The judge overruled the objection, and permitted the defendant to give in evidence the patent to Belangee, which was older than the deed from Sawyer to the plaintiff. The defendant did not pretend to deduce any title from Belangee to himself. We are of opinion, that if the trespass alleged were committed upon a claim of title to the lands under the deed to him from Sawyer, he, according to the decision above mentioned, was estopped to introduce in evidence the patent to Belangee. If the court should be satisfied of the fact, that the defendant did not claim title under the deed from Sawyer to him, when he entered as such trespasser, then the evidence would be admissible, to show that he was accountable in damages to Belangee, who had the better title, and not to the plaintiff.

The nonsuit must be set aside, and a new trial granted.

Per Cukmm. Judgment reversed.