Adderton v. Melchor.

avoided? If the lease and entry were supposed, and the action was brought against the tenant in possession, he had a right to enter his plea, and could not be called on to make any admissions. The expedient adopted was, to bring the action against the casual ejector; let him give notice to the tenant in possession; who, when he applied to be made defendant, might be required to admit “lease, entry, and ouster," as a condition of his being allowed to defend. He had no right to complain-he was not required to admit any thing, that would prejudice his right, but, simply, to admit those things to have been done. which the lessor might easily have done, by increasing the trouble and expense. But to require him to admit a thing, which could not have been done, at the institution of the action-for instance that a lease had been made by a dead man-would be unreasonable. The proposition would have shocked Chief Justice ROLLE, who, nearly two centuries ago, had the honor of inventing the action of ejectment in its present form. Blackstone's Com. 8 vol. 199, 207.

Besides being unreasonable, as requiring the admission of an impossibility, it would be a palpable violation of a fundamental principle of the action of ejectment. "The lessor must not only have title, at the date of the demise, but must have title and a right of entry at the commencement of the suit." At the death of the proposed lessors, the title passed out of them to their heirs or some one else. When this action was instituted, the dead lessors had neither title nor right of entry.

The decision of the Court below must be affirmed.

RUFFIN, C. J. Besides the reasons given by my brother PEARSON for affirming the judgment, there are others, which render it plain, that the counts in question ought not to be suffered to remain in the declaration.

Adderton v. Melchor.

There is no instance, in which a count on the demise of a person, who was dead at the time of bringing suit, has been sustained; and it is contrary to reason, that it should be.

If there were a verdict for the plaintiff on those counts, who could be put into possession under it? Very clearly, the lessors of the plaintiff in the other counts could not; for, the titles of the several lessors in the different counts are distinct and independent, and hence the necessity of laying the various demises in different counts. It is true, indeed, if a lessor of the plaintiff die pending the action, that does not affect the proceeding, but the case goes on to trial on the demise to the plaintiff, which the lessor, since dead, was capable of making as it is laid, and when the suit was brought. In such a case, therefore, there can be no difficulty in permitting the lessor's heirs or devisees, on a title thus accruing pendente lite, to proceed in the name of the plaintiff of record to execu tion. But that can never authorise a person to bring a suit on the supposed demise of a person, who was dead at the time, instead of doing so on his own. If the person, actually instituting the action, have a connection with the dead person, he must have derived his title or claim from him before the suit was brought; and there. fore there is no occasion for using the dead man's name, instead of his own, or in addition to it. If, on the other hand, he cannot deduce title from the dead person. upon what possible ground can he assume to use his name to disturb the party in possession, who has the right to continue in possession against all but the real owner? It is obvious, indeed, if the other lessors of the plaintiff could recover and take possession under the imaginary demises of the dead persons, that the present defendant would then have just the same right to bring suit immediately against those other parties, on the demises of the same dead persons, and, thus, in turn evict them. The ab

Etheridge v. Ashbee.

surdity of such a seesaw shows the impossibility of allowing such an abuse of the legal fictions in ejectment, as was here attempted.

PER CURIAM.

Ordered to be certified accordingly,

DEN ON DEMISE OF THOMAS ETHERIDGE & AL. vs. SOLO. MON ASHBEE.

Where a deed of a married woman had on it only the following entries as to its probate: "State of North Carolina, Currituck County, February Term 1832. Personally appeared Lydia Cook, wife of John Cook, and in open Court acknowledged that she assigned the within deed of her own free will without any constraint whatever. Let it be registered. (Signed,) W. D. • Barnard."

"STATE OF NORTH CAROLINA,

Currituck Sessions, February Term 1832. "This deed from John Cook and Lydia to Samuel Ferebee, was exhibited and proved in open Court, by John L. Scurr, subscribing witness. At the same time Lydia Cook, the feme covert, personally appeared in open Court, and being privately examined by W. D. Barnard, one of the Court appointed for that purpose, who reported, that the said Lydia Cook acknowledged the execution of said deed of her own accord and without any constraint whatever, &c. On motion ordered to be registered.

(Signed,)

S. HALL, C. C. C."

And there was also the following entry on the minute docket of the same term: "A deed from John D. Cook and wife Lydia to Wm. C. Etheridge was proven as to John Cook and wife by the oath of John Scurr, a witness thereto, and her private examination taken in open Court. Ordered registered."

Held, that these entries afforded no evidence that the wife had been privily examined, as required by law.

Appeal from the Superior Court of Law of Currituck County, at the Spring Term 1849, his Honor Judge MANLY presiding.

Etheridge v. Ashbee.

Both parties claim under Lydia Cook, the wife of John Cook. It is admitted, that if a deed from Cook and wife to William C. Etheridge is valid to pass the title of Lydia Cook, then the plaintiff is not entitled to recover. If the deed be not valid, then the plaintiff is entitled to recover.

The deed is in the usual form, signed and sealed by both Cook and Lydia Cook, attested by John L. Scurr. Upon the back of the deed, are the following endorse

ments:

"STATE OF NORTH CAROLINA,

Currituck County, February Term 1832. "Personally appeared Lydia Cook, wife of John Cook, and in open Court acknowledged, that she assigned the within deed of her own free will, without any constraint whatever. Let it be registered.

W. D. BARNARD, [3. P."]

"STATE OF NORTH CAROLINA, Currituck County, February Term 1832. "This deed from John Cook and Lydia Cook to Samuel Ferebee, was exhibited and proved in open Court, by the oath of John L. Scurr, subscribing witness. At the same time, Lydia Cook, the feme covert, personally appeared in open Court, and being privately examined by W. D. Barnard, one of the Court, appointed for that purpose, who reported, that the said Lydia acknowledged the execution of the said deed of her own accord, and without any constraint whatever, &c. On motion ordered to be registered.

"Registered, May 15th, 1832.

"S. HALL, C. C. C.

"THOS. S. LAND, P. R."

On the docket of the Court of Pleas and Quarter Sessions for Currituck February Term 1832, was the follow

Etheridge v. Ashbee.

ing entry: "A deed from John D. Cook, and wife Lydia, to William C. Etheridge, was proven, as to John D. Cook and wife, by the oath of John L. Scurr, a witness thereto, and the private examination taken in open Court and ordered to be registered."

A verdict was returned for the plaintiff, subject to be set aside and a non-suit entered, should the Court be of opinion, that the deed was valid to pass the title of Lydia Cook. The Court, being of that opinion, directed the verdict to be set aside, and a non-suit entered. The plaintiff appealed.

Heath, for the plaintiff.

Jordan, for the defendant.

PEARSON, J. His Honor was of opinion, that the deed was valid to pass the title of Mrs. Cook. With every dis. position to give effect to the deeds of femes covert, we cannot concur in that opinion. The privy examination was not taken as the law requires.

Suppose W. D. Barnard was a member of the County Court, appointed to take the privy examination of Mrs. Cook, his certificate is not, that she was privily examined by him, but that "in open Court she acknowledged," &c.

So, the certificate of the Clerk is inconsistent and re pugnant, as endorsed on the deed. It says: "this deed from John D. Cook and wife Lydia to Samuel Ferebee, was exhibited," &c. This is inconsistent, for the deed, upon which the endorsement is made, is a deed from John Cook and Lydia Cook, his wife, to William C. Etheridge. The description is wrong, or else the endorsement is made on the wrong deed.

Again, it says: "Lydia Cook, being privately examined by W. D. Barnard, one of the Court, appointed for that purpose, who reported, that she acknowledged the execu tion of the said deed," &c. It is not stated, that Barnard