1. A. and B. are in possession of the same land adversely to each 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 title to the land, the law adjudges his possession the rightful one; and an acknowledgment by C. under these circumstances, at the time of executing the deed to A., that B. has the possession, shall not be sufficient to destroy the title made by his deed to A.
2. The maxim, "Nemo audiendus est suam turpitudinem allegare," does not apply, at least, to instruments not negotiable.
HALL, J.
The plaintiff's title, I think, is satisfactorily made out (237) from the first grantee. No objection is made to it before the deed from Chandler to them at which time it is alleged Welborn had an adverse possession, and on that account that deed conveyed no title.
It appears that Welborn had possession of the house at the time the deed was executed to Gwyn and Waugh, but it also appears that Gwyn and Waugh were upon the land at the same time, and they were all upon it by the consent of Chandler, and while in this 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 I think the rule for a new trial should be made absolute. With respect to Chandler's deposition, I see no reason why it should not have been read. It was offered by the defendants; if Chandler had warranted the land to the plaintiffs, and it proved anything in favor of the defendants, he would have been giving evidence against his own interest. The maxim, nemo audiendus est suam turpitudinem allegare, does not apply, at least, to unnegotiable instruments.
TAYLOR, C. J., and HENDERSON, J., concurred.
PER CURIAM. New trial.
Cited: Gwyn v. Wellborn, 18 N.C. 313; Judge v. Houston, 34 N.C. 115.