Guess v. McCauley.

the short but awfully impressive maxim that "murder will out." State v. Arthur, 2 Dev. 217.

It must be certified to the Superior Court of Law for the county of Edgecombe that there is no error in the record, to the end that the court may proceed to pronounce the sentence of the law upon the prisoner.

PER CURIAM

There is no error.

Doe on dem. of JOSIAH GUESS v. WILLIAM MCCAULEY.

An action of ejectment cannot be maintained upon a demise made on a day before the plaintiff's right of entry begins; therefore, not by a vendor against his vendee (who has failed to comply with the terms of the contract), upon a demise made on a day before the demand of possession. It seems that one day's notice to leave is not sufficient to maintain ejectment in such case.

(Love v. Edmondson, 1 Ire., 152; Butner v. Chaffin, at this term, and Carson v. Baker, 4 Dev. 320; cited and approved.)

EJECTMENT, tried before Mitchell J., at Fall Term 1867 of the Superior Court of ORANGE.

The lessor had contracted to sell the land to the wife of the defendant, and they had entered under such purchase. Subsequently they failed to make payment as agreed, and upon the 28th of August 1866, possession or the money, was demanded of them. To this the defendant replied, Sue me and I will pay you one-fifth, that is all you can get. On the next day this suit was begun. The demise was laid upon the 1st day of August 1866.

Guess v. McCauley.

In obedience to an intimation of his Honor's opinion in the court below, the plaintiff submitted to a non-suit, and appealed.

Graham, for the appellant.

1. A purchaser let into possession is not a tenant, but merely an occupant. Jones v. Taylor, 1 Dev., 434; at most he is a tenant at will strictly, and so may be turned out at any time. 2 Bl. Com. 145-6, Sharswood's n., 10; Foust v. Trice, 8 Jon., 490.

2. In all cases where the six months' notice is not required, reasonable notice means time for the tenant to take his goods and depart. Jones v. Willis, 8 Jon., 430. The speed with which persons in the case of Guess can take possession, is recognized in the doctrine that they are not entitled to receivers. Adams' Eq. 122; 1 Jac. & Walk., 17 6 627.

3. Here defendant waived right to notice, defying the vendor by reference to the stay law. Jones v. Willis, supra.

Phillips & Battle, contra.

1. The notice was not sufficient. Love v. Edmonston, 1 Ire., 152; Leigh's N. P., 862; Lewis v. Beard, 13 E., 210.

1. The notice was defective as being in the alternative. Doe v. Jackson, Doug. 176; Adams on Eject., 164; Roberts v. Hayward, 14 Eng. C. L., 381.

BATTLE J. It is admitted that upon the facts stated in the plaintiff's bill of exceptions, his lessor had a right to demand the surrender of the possession of the land mentioned in the declaration, and that, upon the refusal of the defendants to comply with the demand, he might sustain an action

Guess v. McCauley.

of ejectment against them. The only disputed question, which has been brought to our attention in the argument, is whether one day's notice to leave the possession is sufficient, and we are inclined to the opinion that it is not. We think that the occupier ought to have at least time enough to look out for another house and remove to it. It is difficult to say what precise number of days shall be allowed for the purpose, and we will not undertake to decide the question until a case shall arise to call for it. We may take it to be settled that three weeks is long enough because it was so held in Love v. Edmondson, 1 Ire., 152, and again in Butner v. Chaffin at the present term; but as the present case must be decided against the plaintiff upon another ground, we shall decline the attempt to determine what time short of three weeks will be upheld as sufficient.

The ground upon which this case must turn is, that the demise in the declaration is stated to have been made on the 1st day of August 1866, which was twenty-seven days before the possession of the land was demanded of the defendants by the lessor of the plaintiff. In such case the action cannot be sustained as is clearly shown by the case of Carson v. Baker, 4 Dev., 220, where the subject is fully discussed and explained, and the cases of Right v. Read, 13 East., 210; Birch v. Wright, 1 Term Rep., 383; and Den v. Rawlings, 10 East., 267, are cited and relied upon in support of it. The judgment must be affirmed.

PER CURIAM.

Judgment affirmed.

Rose v. Coble and Moore.

THOMAS ROSE v. DAVID COBLE and HENRY MOORE.

A purpose to defraud creditors on the part of the pledgor not participated in by the pledgee, does not affect the pledge.

Although for the validity of a pledge it is necessary that possession shall

be given to the pledgee and not be resumed by the pledgor-this rule does not embrace a case where the pledge is re-delivered to the pledgor as an agent of the pledgee.

The rule that tortfeasors cannot dispute the title of him from whose possession they took the thing in dispute, does not apply where they are sued by such person in trover.

TROVER, tried at a Special Term of the Superior Court of GUILFORD, held upon the second Monday in December 1867, before Warren, J.

The plaintiff claimed a special property in the mare in question, under a pledge by one Garner his brother-in-law, dated 13th October 1866, made to secure him as his creditor and also as his surety. She had been delivered to the plaintiff, and was in his possession when taken by the defendants, who were constables having claims in their hands against Garner. It was shown that after the plaintiff had taken possession of the mare, Garner again had her in his possession and offered her for sale at Greensboro; but he and Rose both swore that he did this as the agent of Rose, and that the proceeds of the sale, if effected, were to have been applied to the debt due to the latter. There was evidence also that Garner was much in debt, and was seeking to elude certain creditors.

His Honor charged the jury, (1) that any fraudulent purpose of Garner to which Rose was not a party, would not affect the latter, but if there was an arrangement between

Rose v. Coble and Moore.

them to defraud Garner's creditors, the plaintiff could not recover; (2) that if Rose had received the mare bona fide as a pledge for debts, its subsequent temporary possession by Garner, if this were as agent of Rose, would not affect the plaintiff's right to recover; but if Garner's possession were for himself, that was inconsistent with the idea of a pledge, and in such case the plaintiff could not recover.

Verdict for the plaintiff; Rule for New Trial discharged; Judgment, and Appeal.

McLean, Dick and Gorrell, for the appellants, upon the point that the title of the plaintiff was in question in the form of action employed by him, cited Hostler v. Scull, 2 Hay., 129; Laspeyre v. McFarland, N. C. Term, 187.

Scott & Scott, contra.

As regards the 1st point made by his Honor, the question of title did not arise, as defendants were tort feasors. Worth v. Northam, 4 Ire., 102. The ruling however was correct. See Stone v. Marshall, 7 Jon., 300.

To support the 2d point in the charge, they cited Story, Bail., s. 299; 2 Kent, 745, note (2); Macomber v. Parker, 14 Pick., 497, &c; Bodenhammer v. Newsom, 5 Jon., 107; Reeves v. Capper, 4 Bing. N. C. 54; 2 Taunt., 268.

READE J. The defendant's first objection is, "that the transaction was fraudulent." Whether there was fraud or not was a question of fact for the jury, under proper instructions from the court. That part of the charge which was excepted to is, "that any fraudulent purpose on the part of the pledgor, to which the pledgee was not a party, did not affect the pledge." We see no error in this. To render a contract void for fraud, the fraud must affect the contract.