Cooper v. . Axley , 114 N.C. 643 ( 1894 )

There was a verdict for the plaintiff, and from the judgment (645) thereon defendant appealed. Graham, claiming under a deed from Blackwell, during January, 1891, put the defendant as his clerk in possession of (646) the land in dispute. On 31st of same month Graham reconveyed to Blackwell, who had previously conveyed the premises to him. A person holds possession for himself or by his agents, his servants or his tenants. Williams v. Wallace, 78 N.C. 354; Ruffin v. Overby,105 N.C. 86. Axley was therefore holding as the agent or servant of Graham, when the latter reconveyed to Blackwell, through whom the plaintiff claims by mesne conveyances. Being his servant, Axley is as certainly estopped by Graham's deed as is the grantor himself, with whom he is in privity. He occupies the same relation as a tenant of Graham as did Graham himself to those holding under his deed, and it does not seem that he was entitled to the favor which the court extended in submitting the case under the rule of evidence applicable, where contestants deraign title from a common source. The defendant in this case was estopped by the deed of Graham, with whom he is in privity, not confined simply by a rule of evidence to testimony tending to connect himself with the better title shown in Montgomery Bell or his heirs by the grant dated 31 May, 1853. But he failed upon the testimony offered to connect himself with that grant, and in any view of the evidence, therefore, the plaintiff was entitled to recover.

Judgment affirmed.

Cited: Alexander v. Gibbon, 118 N.C. 801.

(647)