Den on Demise of Murphy v. Barnett

'Where both parties claim under the same person, they aye privies in estate, and cannot, as such, deny his title. Therefore, where in an ejectment, it appeared that the Defendant had accepted a deed from the same person, under whom the Plaintiff claimed, he was estopped to deny title in tills person.

¡>From Guilford. In this case a verdief was found for the Plaintiff, and a vule for a new trial being obtained, the case was, that T. Dixon being seized of the lands in question, agreed to sell them to W. Dixon, to which end he made a power of attorney to C. Dixon. \Y. Dixon took possession of the lands under the agreement, and contracted to sell them to Thomas Barnett, who. entered accordingly. Upon which, C. Dixon, intending to execute the power of attorney, did, at the request of W. Dixon, seal and deliver a deed of bargain and sale to Thomas Barnett, as assignee of W. Dixon. The deed was signed by C. Dixon, attorney in fact for T. Dixon. A judgment was recovered against Thomas Barnett in the County Court of Caswell, on which aji.fa. issued, which was levied on the land, and at the sale of the land made by the Sheriff, the lessor of the Plaintiff became the purchaser, and received a deed from the Sheriff. A short time before the/. fa. was issued; Thomas Barnett executed to his son, the Defendant in this case, a deed for the land. The Defendant entered and was in possession, claiming title when the Sheriff sold. The demise laid in the declaration was in the name of A. D. Murphy 5 and it. was objected on the trial, that it appeared from the Plaintiff",s own shewing, that the legal title to the land was in T. Dixon ; for although he had empowered C. Dixon to execute a deed to V. Dixon. he had not empowered him to execute it to Thomas Barnett; and, therefore, the power not having been executed, the title still remained in T. Dixon. To tiiis it was answered, that although this objection might he urged with success, under other circumstances, yet situated as the defendant was, he could not be permitted to insist that Thomas Barnett had not title, for it appeared in evidence, that he himself had accepted a deed for the land from Thomas Barnett, and had entered and claimed title under the deed. That, therefore, he was estop-ped from denying title in Thomas Barnett: And of this opinion was the court. The Jury found that the deed made by Thomas Barnett to the Defendant, was fraudulent against creditors, and rendered a verdict for the Plaintiff. Upon a rule for a new trial, the case was sent to this Court, on the question of estoppel.