{
  "id": 8682729,
  "name": "DOE on dem. of DANIEL HALFORD AND ELIZABETH HIS WIFE vs. JOSHUA TETHEROW",
  "name_abbreviation": "Doe on dem. of Halford v. Tetherow",
  "decision_date": "1855-08",
  "docket_number": "",
  "first_page": "393",
  "last_page": "398",
  "citations": [
    {
      "type": "nominative",
      "cite": "2 Jones 393"
    },
    {
      "type": "official",
      "cite": "47 N.C. 393"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "3 Dev. 318",
      "category": "reporters:state",
      "reporter": "Dev.",
      "opinion_index": 0
    },
    {
      "cite": "32 Hen. 8",
      "category": "reporters:state",
      "reporter": "Hen. & M.",
      "opinion_index": 0
    }
  ],
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  "last_updated": "2023-07-14T15:13:38.493839+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "DOE on dem. of DANIEL HALFORD AND ELIZABETH HIS WIFE vs. JOSHUA TETHEROW."
    ],
    "opinions": [
      {
        "text": "PeaRSON, J.\nIt is too clear for argument that the will does not give the widow a life estate, in that part of the original tract, which is claimed by the defendant. The testator had sold this part to his son Hiram, who was living on it, and cultivating up to the cross fence, which was the dividing line, while the testator lived upon and cultivated the other part. The words \u201c I allow the plantation where I now live on, and all my household furniture, &c., for the use and benefit of my wife, during her life,\u201d embrace only the latter\u2019 part. Resides, it is hot reasonable to suppose that the testator could have intended to encumber with a life estate, the part which he bad' sold to bis son, and for which be bad executed a bond to make title.\nThe remaining question is as to the effect, of the sheriff\u2019s deed to the defendant, and his possession under it. Upon the death of tlfe testator, the legal title to the land in controversy, not being disposed of by the will, descended to bis three children as his heirs at law. ITiram, under his contract of purchase, had not such an equitable estate, or trust, as was liable to be sold under execution, by force of the Act of 1812; so the defendant, by the sheriff\u2019s deed, acquired only the legal estate which had vested in Hiram as one of the heirs at law.\nIf the effect of this deed was to vest Hiram\u2019s legal estate in the defendant, as a tenant in common with the other two heirs, then the defendant\u2019s possession was not adverse; and although he had the sole possession for more than seven years, the estate of his co-tenants was not divested, and he did not acquire a title to the whole in severalty. In this view of the case, the plaintiff cannot maintain his action, for one tenant in common cannot sue his fellow, unless there is an actual ouster, either proven or admitted by the pleading*. The record sets forth that the defendant pleaded not guilty; his entering into the common rule is not set out, and we are not at liberty to assume that he admitted an \u201cactual ouster.\u201d\nIf the effect of the sheriff\u2019s deed, and the defendant\u2019s sole possession under it, was to divest the estate of the other two heirs, and amounted to an\"actual ouster, then the defendant\u2019s possession was adverse, and being continued for more than seven years, ripened his title to the whole in severalty. In this view of the case, the plaintiff cannot maintain his action, unless he can bring his case within the saving of the'Statute of limitations, by reason of the covert/ure of the feme l\u00e9sso'r.\nIn Williams v. Lanier, Busb. 30, the rule is said to be, \u201cwhere the wife must be joined, the Statute does not bar: where the husband must sue alone, or may, at his election, join the wife, the Statute does bar.\u201d It is also said in that case, where the eviction is before the coverture, the wife must be joined: when the eviction is dmrmg the coverture (as in .our case) the husband may sue alone or may, at his election, join the wife,\u201d\nThis seems to be conclusive: the husband cannot prevent his right of entry from being tolled by joining his wife, and she, or her heirs, have seven years, after his death, in which to sue.\nA husband, without joining his wife, can make a lease for years. Bac. Abridgt. \u201c Leases and terms for years\u201d: consequently he may bring ejectment without joining the wife. \u201c It is considered as settled, that although the husband may join the wife, yet it is not necessary that the husband and wife should join in a lease to try the title to her estate : he alone may make a lease for that purpose.\u201d Bac. Abr. \u201c Ejectment.\u201d Several cases are there cited in which the husband has maintained ejectment on his own demise. The Statute 32 Hen. 8, enables husband and wife to make a lease which is binding on her after coverture, but this in no wise affects his right at common law to make a lease alone which is valid during the coverture. In Williams v. Lanier, this doctrine is fully discussed and it is unnecessary to repeat it. In that case there was issue born, and the decision in respect to the action in the nature of Waste is confined to the facts there presented; but the general remarks and reasoning of the Court, in respect to the Statute of limitations, is equally applicable to a case where there is no issue; for although the birth, of issue is required to make the husband \u201c tenant by the curtesy initiate \u201d and may be necessary to give him a seizin or free-hold in severalty, or in his own right, yet it has no bearing on his right to the sole possession, by force of which he sues alone in trespass qucure clausum fregit for an injury to his crop, or may make a lease for years, and of course may bring ejectment to recover possession if he is evicted.\nTaking our case in either point of view, the plaintiff cannot maintain his .action, and the judgment in his favor must be reversed; and upon the questions reserved, the verdict, being rendered subject thereto, must be set aside and a non-suit entered.\nUpon the argument our attention was called to Burton v. Murphy, N. C. Term Rep. 259, where it is held that one who holds sole possession under a deed from one tenant in common for the whole tract has an adverse possession, which in seven years will ripen his title as to the whole. And our attention was also called to Cloud v. Webb, 3 Dev. 318; and'particularly to the very full and learned argument of Mr. Winston, (P. II. Sr.,) who controverts the decision in Burton v. Murphy. As in either point of view, the case under consideration is against the plaintiff, we are not at liberty now to decide what is the effect of a conveyance of the whole by one tenant in common, and a sole possession for seven years by the purchaser.\nPer CuriaM. Judgment reversed.",
        "type": "majority",
        "author": "PeaRSON, J."
      }
    ],
    "attorneys": [
      "Gaither and Williams, for plaintiff.",
      "W. IF\". Wooclfin, for defendant."
    ],
    "corrections": "",
    "head_matter": "DOE on dem. of DANIEL HALFORD AND ELIZABETH HIS WIFE vs. JOSHUA TETHEROW.\n(The first point in this-ease is the construction of a will arising upon its -peculiar phraseology.)\nOne tenant in common cannot sue his fellow, unless there is an actual ouster either proved or admitted by the pleading.\nCoverture is not a saving against the operation of the Statute of limitations, unless the wife must be joined with the husband in order to sustain the action Where he may sue alone, or where he may join the wife with him at his election, the Statute bars.\nWhere the eviction takes place during the coverture, the husband may sue alone, or may join his wife with him at his election; in such a case, therefore, ho is barred by the Statute.\n, EjegtheNt, tried before Bailey, Judge, at a Special Term of Buncombe Superior Court, July, 1855.\nThe land in question, had been granted to John Lakey, who died in 1835, seized of the same in fee, leaving the plaintiff Elizabeth, Hiram Lakey, and Anne Lakey his only children and his heirs at law. To avoid the application of the Statute of limitations the plaintiffs piit in the will of John Lakey, and it was insisted by them, that the land in question was devised to Jincey Lakey, his widow, during her life or widowhood ; and that she having died without marrying, only about two years before the bringing of this suit, they were within time. The will of John Lakey is as-follows: \u201cIn the next place, I allow my just debts to be paid- out of my estate; then in the next place, I allow the plantation where I now live on, and all my household furniture, and stock of cattle and horses and hogs to the use and benefit of my wife Jincey, during her life, or as long as she remains my widow; and if she should marry, I allow all my property to be sold, and my wife to have the third of all the perishable property. Also, I allow my land to be sold and divided as follows: if John Alloway -stays and works with Ijis grandmother, I allow him to have three months schooling and fifty dollars out of my estate when sold : next, I allow when my propertjq that is, the balance after the sale, to be equally divided between my son* Hiram Lakey, Anne Lakey and Elizabeth Halford: next, the place of mine that Jesse Watkins now lives on, after his lease is up, I allow to be rented out and go to the use of my son Hiram, and Anne La-key and Elizabeth Halford, to be equally divided betwixt them, until sold: next, I appoint Hiram Lakey and John Young, Executors.\u201d <\u2022\nThe defendant offered in evidence a sheriff\u2019s deed for; the land in dispute, dated in 1840; also a levy and sale under a judgment and execution against Hiram Lakey, and proved a sole possession, under this purchase, for more than seven years before the commencement of this action. The defendant also offered in evidenc\u00e9 a bond, executed by John Lakey to Hiram Lakey, conditioned that he should make title to the said Hiram, when the purchase money therein mentioned, should be'paid: he also proved that Hiram Lakey was living on that part of the land claimed by him, at the time of the death of John, and continued so to do until 1840, when the defendant went in. .It had been part of the tract on which John Lakey lived, but on the making of this contract of sale, John, and Iiiram, his son, inade a dividing fence between them, which has ever since been observed and regarded as the line of separation between Hiram\u2019s part, and the original tract; and was especially so regarded and observed by the widow of John Lakey, up to the time of her death. The feme lessor had inter-married with the other lessor, David Halford, before the death of John Lakey.\nA verdict in favor of'the plaintiff was returned, subject to the opinion of the Court upon the points reserved, viz:\n1st. Whether the Statute of limitations formed a bar to the plaintiff\u2019s recovery?\n2nd. Whether the will conveyed a life estate to the widow in that part of the land, claimed by the defendant as bargained to Hiram Lakey ?\nUpon consideration of the questions, reserved, his Honor, being of opinion with the plaintiff, gave^judgment accordingly, from which, the defendant appealed to this Court.\nGaither and Williams, for plaintiff.\nW. IF\". Wooclfin, for defendant."
  },
  "file_name": "0393-01",
  "first_page_order": 401,
  "last_page_order": 406
}