#### DOE ex dem. SAMUEL MERCER vs. TULLY HALSTEAD et el.

If at the time, the lessor of the plaintiff purchased and took his conveyance, the defendant was in possession of the premises described in the declaration, claiming them adversely, the plaintiff cannot recover. The lessor of the plaintiff had but a right of entry, which he could not convey, so as to enable his assignee to sue in his own name.

This was an action of ejectment, tried at Currituck Superior Court, Spring Term, 1853, before his Honor, Judge Saunders.

On the trial the plaintiff proved that the land formerly belonged to one Baxter, and that at his decease it passed into the possession of his daughter Mary. In the yea» 1828, Mary intermarried with one David Wilson, who had by her a son, Thaddeus Wilson, and about fifteen years since, with his son, removed to the *312State of Tennessee, leaving his wife in. the county of Currituck. After his removal, the said David and Thaddeus, by deed dated February 15th, 1851, sold the land to SamueL Mercer, the lessor of the plaintiff. To estop the defendant, the plaintiff further proved a deed from the said Mary Wilson, dated in 1845, conveying the said land to the defendant Halstead ; and also that David Wilson, the husband, was still living. It was further shown that Halstead, one of the defendants, had been in possession of the land by himself or his tenants, from the year 1845, up to the túne of the trial.

The defendants proved that the said Mary filed her bilí inJEquity, at November Term, 1850, in the Court of Equity for Curri-tuck county, for a divorce, alleging the adultery of her husband, and his abandonment of her, and that at Spring Term, 1852, after service by publication, she obtained a decree for divorce and alimony. The defendants insisted that the plaintiff could not recover ; 1, because he himself was in the adverse possession of the land at the date of the deed to Mercer ; 2, because the deed to Mercer was to deprive the wife of alimony, aud being executed after the filing of her petition, was fraudulent and void. • Other points were taken by the defendants, which are unnecessary to state.

The plaintiff contended there was no evidence to go to the jury to affect the validity of the deed to Mercer, and that the Court should so charge. This his Honor declined, but charged the jury that it had been conceded in the argument by both the plaintiff and defendants’ counsel, if the intent of making the deed to the lessor was to defeat the wife’s claim for alimony, and this was known to the lessor, and he participated in it, then it was fraudulent and void ; and that such was the law. That the intent with which tire deed was made was a question for the jury, and that they were to decide it on the evidence adduced. If they should find the deed to have been made with that intent, and this was known to the lessor, their verdict would be for the defendants ; if otherwise, they would find for the plaintiff.

There was a verdict? for the defendants, and the plaintiff failing to obtain a new’trial, appealed to the Supreme Court.

*313 Heath and Hines, for the plaintiff.-

Smith and Pool, for the defendants.

Nash, C. J.

The first objection to the plaintiff’s recovery stated in the bill of exceptions is, that the defendant, at the time of the conveyance from David Wilson to the lessor of the plaintiff, was in the adverse possession of the premises claimed in the declaration. This objection is fatal to the action. The lessor derived tide under David Wilson by deed, bearing date in 1851. In 1845, Mary Wilson, who was the wife of David Wilson, conveyed the premises to _ the defendant, who went into possession and cultivated and cleared, and was in possession in 1851, claiming it as his own. Whether the deed to the defendant actually did convey the land to Halstead, is not material to be inquired into. He was in possession under it, claiming adversely to all the world. At the time then that David Wilson sold and conveyed the land to the lessor of the plaintiff, he had but a right of entry* which he could not convey so as to enable his assighee to sue in his own name. It cannot be necessary to cite authority to show this. Upon this exception the Court affinns the judgment below.

We further say that his Honor committed no error in refusing to instruct the jury as required. There was evidence upon the 'question of fraud, and it was properly left to the jury for their decision.

Per Curiam. Judgment affirmed.