#### Doe on demise of Gwyn & Waugh v. Stokes and Welborn.

From Wilkes.

\ and 15. «re in possession oi'tlie same land adversely to cveli other, while in this situation a deed for the land is executed to A. by C, who has both possession and title. A. then having thus acquired ti ■ ile to the land, the law adjudges his possession the rightful one ; and an acknowledgment by C. under these circumstances, at tlic time of executing the deed to A, that 55. has the possession, shall not be sufficient to destroy the title made by his deed to A.

¡’he maxim “ nemo audiendus eat .mam íurpiiudinem allegare,” does not apply, at least, to instruments not negotiable.

This was an action of ejectment, in which tin: lessors of the Plaintiff made tille under a grant issued 3d of March, 1779, and by a regular succession of conveyances, skewed the title to be in one Joel Chandler, on the 1st of August, 1812. They then produced a deed from Joe! Chandler to J ames Gwyn, one of the lessors, and to David Waugh, who afterwards died, having devised his interest in the land to William 1*. Waugh, the other lessor of the Plaintiff. It was proved that the land had been in the uninterrupted possession of some one of those through whom Plaintiff deduced his title, frolic ..he year 1779 un - til the month of November, 1814. The Defendants offered no evidence of title on the trial below, but intro duccd the deposition of Joel Chandler, from which it appeared, that the deponent liv ed formerly on the lands in dispute, which were claimed by the Moravians ; that in consequence of having heard that the EVfendanis, Stokes and Weiborn, had an indisputable title to the lands under the Moravians, deponent offered them for sale at a price much below their value, and accordingly contracted with James Gwyn, jun. asid David Waugh, for the sale of the lands, on the following terms. Disponent, upon the payment to him of £>100, by Gwyn and Waugh, was to convey to them all the title which he had to the lands, *236but was not to deliver to them the possession thereof. On the day on which deponent removed from the lands, the Defendant Welborn came to the house of deponent, on ^.|ie ]arKks, and offered deponent ten dollars, if he would say, he deponent, had no possession when he removed from the lands. Welborn, in a very short time after deponent left the house, took possession thereof, and soon after, or the same day Gwyn and Waugh came to the house and found Welborn in possession of it. Having failed in an attempt to force Welborn out of possession, they asked deponent if he would execute to them a conveyance, according to the contract made between them. Deponent did execute to them such a conveyance, remarking to them at the time, that they perceived Welborn had obtained actual possession of the lands in question, and claimed them under the Moravians. The Plaintiffs then proved by one of the subscribing witnesses to the deed from Chandler, that on entering the house on the day alluded to in the deposition, he found there the Defendant Welborn, employed in fastening the windows of the house, who proposed to witness to become his tenant; that on leaving the house, he saw Gwyn and Waugh, who, together with Chandler, came into the portico of the house, when the deed was executed by Chandler, that at thist áme^'-Yelborn was in the house and knew that the party was in the portico, but made no objection to their coming on the land or into the portico, simply remarking to Chandler that it behoved him to be careful of his acts. Chandler’s waggon was then standing at the door, loaded preparatory to his removal. The Plaintiffs objected to the reading of Chandler’s deposition, but the Court overruled the objection.

On this evidence, a verdict was returned for the Defendants, and Plaintiffs moved for a new trial. The motion was overruled, judgment rendered pursuant to the verdict, and the appeal of the Plaintiffs presented the case to the consideration of this Court, where it was submitted without argument.

*237Hall, Judge.

The Plaintiffs’ title I think is satisfactorily made oat from the first grantee. No objection is made to it before the deed from Chandler to them, at which timo 'Í is alle-cd Wclbarn bad an adverse/ possession, and on that account that deed conveyed no title.

ft appears that Wdbowi had possession of tbo house at the time the deed was executed to Gwyji and Wangli, but it also appears that Gwyn and Wargh were upon the tarn! at tin* same time, and they sere, all upon it by the consent of Chandler, and while in tins situation the deed was executed to the Plaintiffs ; they then had title to the land, and having'title, the Law adjudges their possession the rightful one. For this reason, J .think the rule for a new trial should be made absolute. With respect to Chandler's deposition, 1 see no reason why it should not have been read, it was offered by the Defendants j if Chandler had warranted the land to the Plaintiffs, and it proved any' thing in favor of tin; Defendants, be would, have been giving evide nce against his own interest. The maxim, nemo audietulus esl mam íitrjrihulinem allegare, does not apply (at least) to unnegotiable instruments.

Tayuoi?, Chief-Justice, and íIkivü'bksoy, Judge, concurred.