#### DANIEL CLAPP et al. v. SAMUEL COBLE.

December, 1835.

A tenant, against whose landlord a judgment in ejectment had been recovered,, may, after such judgment and before eviction, purchase in the title of the real owner, and hold the possession of the land as his own, under liis newly acquired title.

It seems > that although before eviction after-a'judgment in ejectment, the covenant for quiet enjoyment is not broken, yet if the tenant of the vendee acquires a new title, after such judgment, and before his eviction, it will amount to a-breach of that covenant, so as to entitle the vendee to his action.

An administrator, who bona fide carries on a suit commenced by his intestate, will be allowed the expenses of such suit as a proper disbursement, although it may be unsuccessful.

The plaintiffs and the defendant were the next of kin and the heirs at law of David Coble, deceased. This bill was originally filed for two purposes ; -the one to call the defendant, who was also administrator of the said David, to account with the plaintiffs for their distributive shares of the personal estate of the deceased; and the other, for the partition of three tracts of landi whereof it was averred that the deceased died seised in fee simple. The first part of the case was disposed of, except in relation to a single item claimed by the defendant as a disbursement, it being the amount of costs and charges paid by him in the unsuccessful prosecution of a- suit instituted by the deceased, and carried on by the defendant after his death and as his administrator. If this were allowed to the defendant as a proper disbursement, the plaintiff had no further claim as next of kin; if it were not, then they yrould be entitled to an additional sum to that already decreed to them. With respect to two of the tracts of land there was no controversy. The defendant admitted the common seisin of the plaintiff and himself therein, and assented to the partition prayed for. But with respect to the tract called the Welbourn tract, the defendant insisted that he was the sole proprietor of it, and that the plaintiff had no right to ask for a partition thereof. The facts in relation to the title to this disputed tract, upon the pleadings and proofs, appeared to be these. — Jane M‘Gee was seised ^thereof in fee simple. She married John Welbourn, who executed a deed of bar*178gain and sale unto one William Bell,'whereby he purported to convey the said tract to the said William in fee simple; and on .the 27th of October, 1799, the said William, by deed of bargain and sale, conveyed the same in fee simple to thé deceased David Coble. Jane Welbourn was not a party to the deed of her husband, but subscribed her name to an endorsement upon the deed of William Bell, or to a certificate annexed thereto, declaring that she assigned all her right in the said land for a valuable consideration to the said David Coble. Under this claim of title David Coble remained in possession of the tract during the life of John Welbourn. He died after the month of May, 1823, and before the 29th of September, 1825, when his widow instituted an action of ejectment against Samuel Coble and Daniel Coble, sons of David, and tenants in possession under him. By ah order made in the cause, David, as the landlord of the said Samuel and Daniel, was made a party defendant in their stead, and in November, 1826, a verdict was had and a judgment rendered for the plaintiff in ejectment. Immediately after this judgment was rendered, and before any eviction of possession, an action was brought by David Coble against the representatives of his bargainor, William Bell, for a supposed breach of the covenants contained in the deed aforesaid of the said William. The plaintiff in this action having died, the present defendant, as his administrator, revived and prosecuted the said action, which was finally decided against him, because the covenant sued on was a covenant for quiet enjoyment, and a breach of that covenant had'not taken place when the suit was instituted. On the day succeeding that upon which the last mentioned suit was commenced, the defendant, who was yet on the land, obtained a conveyance therefor from William Wel-bourn, who claimed under a conveyance with covenants of general warranty from John Welbourn and his wife Jane, dated the 14th May, 1823. The defendant paid a full and fair consideration for the land to William Wel-bourn, and under this conveyance hath continually since enjoyed the land as his own.

Nash, for the plaintiffs.

W. A. Graham, for the defendant.

*179Gaston, Judge,

having stated the case as above, pro-ceéded as followsIt is obvious upon this statement that the rightful estate which the deceased David Coble acquired by his conveyance from William Bell, terminated by the death of John Welbourn. The fee simple was in John Welbourn’s wife, and could not be rightfully transferred except under the solemnities required by law in relation to the deeds of femes covert; but his estate passed by his deed to Bell, and by Bell’s deed to Coble. Jane Welbourn had no right of entry until after the death of her husband, and if this right had not been asserted within seven years, the then adverse possession of Coble, would have ripened his defeasible into a perfect title. But it was asserted effectually to a judgment, which put it into her power to take possession of the land. It is an established rule of law, that a tenant cannot dispute the title of his landlord, either by setting up a title in himself or in a third person, while such tenancy continues. It would encourage bad faith and violate public policy to allow the tenant to hold in defiance of his landlord, who, reposing upon the faith of the relation existing between' them, has regarded the possession of the tenant as his possession, held under his title, and ready to be surrendered to him when the time to require such surrender shall arrive. -There can be no question, however, but that after the dissolution of the tenancy, as where the tenant has been evicted on an adversary claim, the tenant is free to purchase in the title, or to enter into a new relation with others, and to defend the possession, under that title or that relation, against his former landlord. Here indeed there there was not an actual eviction of Samuel Coble, but his possession had been unsuccessfully attempted to be defended by David Coble. It had been judicially ascertained that, as the tenant of his father, he had no right to the possession; that the interest in the land, and of course the rights to its rents and profits, was in another; and it seems to us that he was well warranted in treating the relation of tenancy between him and his father as terminated, and in regarding himself at liberty to give a new and rightful character to his possession. See Baker v. Mellish, 10 Ves. *180544. We also think, although it is not" necessary to give a judicial opinion on the question, that if David Coble had deferred bringing his action of covenant until after the conveyance to Samuel, he might have successfully maintained his action. The possession of Samuel being no longer his, the covenant for quiet enjoyment would have been broken. But it is' objected, that the defendant purchased and took a conveyance, not from Jane, but William Welbourn, who set up title to the land, under an alleged deed from Jane Welbourn, and that this deed passed nothing, because at the time it was made, the land was in the adverse possession of David Coble. In law, however, this possession.was not then adverse to Jane Welbourn. David Coble was seised of a rightful estate during the joint lives of John Welbourn and his'wife, and the reversion in fee remained in her. And if the possession had been adverse, we understand the law to be, that, although the deed did not operate directly to transfer the title, which yet remained in the grantor, so that the grantor might maintain an ejectment against persons not privy to the deed, it might between the parties thereto operate as an estoppel. But there is a stronger objection to the deed. The acknowledgment of Jane Welbourn to this deed was defectively and irregularly taken, and this may have been the reason, for it would have been a sufficient reason, why in the action of ejectment, the deed was not set up by David Coble, to defeat the plaintiff’s recovery. But, notwithstanding all or either of these objections to the efficacy of that deed, we are still of opinion that the taking of the conveyance from William Welbourn, changed the character of the defendant’s possession. The true question is, whether David Coble died seised of the tract in dispute. His estate ceased on the death of John Welbourn, and there is no pretence' for the allegation that he died seised, unless the possession of the defendant continued to be his possession, and in affirmance of his title, up to his death. But the possession of the defendant, after taking the conveyance from William Welbourn, was adverse to the title of his father. William Welbourn claimed under Jane Welbourn, by a colourable though defective conveyance. The posses*181sion by his assignee was a possession under her title, which none but herself could disturb, which she has not disturbed, and which now she cannot disturb. It must be regarded as having been held by and with her concurrence.

The plaintiffs also allege that David Coble was a lunatic, and the fact being denied by the defendant, much and contradictory evidence has been taken upon it. We do not see any necessity for deciding this fact. However it may be, the judgment in ejectment cannot on that account be rendered inoperative. If the defendant’s right to purchase from William Welbourn depended on his father’s assent to such purchase, the inquiry might be a material one. But it- is wholly independent of that assent, and results simply from the determination of his tenancy. Upon the whole, we are of opinion; that the plaintiffs and the defendant are not tenants in common of the Welbourn tract, but that the defendant is sole seised thereof.

We are" also of opinion that the defendant is entitled to the disbursement which he claims for the expenses of the suit upon the unfortunate action' of covenant. It was brought by his father upon the-advice of respectable counsel, and was prosecuted by him in- good faith for the benefit of the estate, with the care of which he was charged.

The partition, as prayed for and assented to by the defendant in the other two tracts, must be made ; and the costs attending such partition are tó, be charged upon all the parties, in the proportion of their respective interests. As to the other matters, the bill is to be dismissed, and with full costs to the defendant. ■

Per Curiam. Decree accordingly.