1 S.C. 256 | S.C. | 1870
The opinion of the Court was delivered by
In the construction of a statute instituting a new course of proceeding, or affecting materially the mode by which the right to the possession of property, whether real or personal, is to be asserted, it is a safe and admitted rule that its provisions are not to be extended beyond the purpose clearly intended by its terms.
In the examination of all statutes, the principles of the common law are to be duly regarded and respected; and if the language renders plain the omission which they are intended to supply, they must be restricted in their application to the intention made manifest by the words.
The Act of 1866, (13 Stat. at Large, 408,) under which the respondents claim to proceed, creates a new jurisdiction — -a summary course of procedure — and should, therefore, be construed strictly. — Thvarris on Statutes, 757.
It conferred on Magistrates a power theretofore unknown in this State, and interfered materially with all the rights which, by law, attached to the possession or occupancy of lands. A party seeking its aid must bring himself within more than a mere equity to its benefit, by showing that he is within the meaning and intention of the Act, by those rules of interpretation prescribed as the only medium by which statutes are to be construed.
The purpose of the Act was to provide an expeditious mode of ejecting trespassers. It not only defines who are to be so regarded under it, but the |oersons as against whom the trespass is to be committed. Not only is the possession to be of land of another, but the entry must be without the consent of him who, at the time of such entry, had the right to assent to it, or without warrant of law. When the two incidents of entry and want of consent of the then owner combine, the jurisdiction of the Magistrate attaches, for, if there be such consent, there is “warrant of law.”
When the relators, Cooley and Green, entered on the land, in whom was the title vested, and whose right did they thereby violate? In other words, as against whom did their entry constitute a trespass? Their father died seized and possessed of it. They were either on the land at the time of his death, or, soon after that
On the death of the father, and at the very moment of the sale by the Sheriff and the purchase by Baldwin, they were, in fact, the owners, in fee, of the land. Advice to executors to sell, vests the fee in the heirs of the testator until the sale. — Haskell et al., vs. House, 1 Tr. Con. Rep., 106; King ads. Ferguson, 2 N. & McC.,, 588; Executors of Ware vs. Murph, Rice, 55; Thompson and Smith, vs. Gaillard, 3 Rich., 418.
The change in the character of their possession, which resulted from the execution of the Sheriff’s title to Baldwin, the purchaser, while it may subject them to an action of trespass to try title, can not render them amenable to the terms of a statute which expressly refers to an entry on lands without the consent of the owner, or without warrant of law.
This Court has no doubt that the remedy resorted to by the re-lators was well taken. An appeal is not provided by the Act, and, unless the writ which issued was the proper process, the relators were without adequate and effective remedy. Where an inferior tribunal proceeds to act under a false and mistaken assumption of jurisdiction, it needs no reference to authority to shew that prohibition is the proper remedy.
It is, also, assigned as error, that the writ issued at the suit of an individual, when it should have issued in that of the State and the Solicitor of the Circuit.
It is true that, in England, all prerogative writs issue from the King’s Bench, and the name of the King is employed by the party at whose relation it is sought. In this State it is styled in the name of the State on the relation of some person who thereby makes himself a party to the proceedings. It is not necessary, and certainly has not been usual, for it to contain, also, the name of the Attorney General or a Solicitor of the Circuit. In this regard it differs from the practice as to quo warranto.
It was irregular to submit the suggestion in the name of a private person ; but for such a mere irregularity, in no way affecting the merits of the application, we are not disposed to set aside the writ, when the parties against whom it is directed have usurped a jurisdiction to which it is clear they had no pretence of right.
The judgment of the Court below is affirmed.
