Bethea v. Bethea, 139 Ala. 505

Bethea v. Bethea

139 Ala. 505 | Ala. | 1903

McCLELLAN, C. J. —

It is not questioned that Henry Bethea was entitled to the possession of the house and lot at the partition sale and purchased by him from and after the confirmation of that sale. Being so entitled and the possession and use of the property being kept from him by Miss Bethea and Theodore Bethea, who occupied and eujoved it, it follows that he was entitled to recover from them the value of such use and occupation. This right is rested upon the consideration that they have to that extent been benefited, and he to that extent has been damaged by their enjoyment of his property; and the benefit to them and the detriment to him being the same, regardless of whether he might sooner have dispossessed them, the fact that they remained in possession for a time at his sufferance is of no consequence. The contrary conclusion would in principle, *510involve tbe proposition that a plaintiff in the statutory action for the recovery of land was not entitled to recover for its wrongful detention during the period lie forebore to bring suit. Nor is the purchaser’s abstract right to recover the value of use and occupation at all affected by the fact that his right to possession was wrongfully postponed by the execution of a supersedeas bond on the former appeal taken by these appellants. That merely afforded a certain security for damages suffered by him in consequence of being ke]5t out of possession to tbe extent of the bond’s penalty. To that extent, he could go on the sureties and principals by action on the bond; but the giving of the bond did not operate to limit the liability of the principals for their use and occupation of his land to the amount of its penalty, nor take away his right of action for the use and occupation wholly apart from the bond. The bond and supersedeas postponed the execution of his right to take possession pending the appeal, and when on the appeal the decree confirming the sale was affirmed, all his rights in the premises were the same as’if no appeal had been taken except only that he had then the additional and cumulative right to go upon the sureties for his damages to the amount nominated in the bond. Of course, the purchaser knew when he made his bid and paid the amount of it into court, that any of these interested in common in the property.and the proceeds of its sale, had the right to appeal from the decree of confirmation, supercede that decree pending such appeal and thereby delay him in taking over the possession, for such was the law; but he also knew that this appeal and supersedeas would not affect his standing and rights from and after the decree of confirmation, if that decree were affirmed, for such also was and is the law. The decree was affirmed, and there can be no doubt that he was entitled thereupon to the possession of the land, that it was his land from the time of the decree of confirmation, and that he veas entitled to recover from the persons who had, in the meantime, been occupying and using it, the value of that use and occupation, without taking any account of the supersedeas bond.

*511The remaining question in tbis case is as to tlie power of tlie chancery court, which decreed and confirmed the partition sale, to conserve this right of the purchaser by deducting from the shares of the proceeds of the sale of the two tenants in common who retained the possession of the property, the value of the use and occupation and refunding that amount to the purchaser on his petition to that end, or should this petition have been denied and the purchaser been remitted to his action at law. In our opinion, the chancery court had that power. The occupying tenants were, of course, parties to the bill for partition, and at all times before the court. The fund was in the hands of the court. The purchaser, as purchaser, was also before the court, and had in a general sense a standing therein to invoke its powers to the effectuation of his right of possession consequent upon the confirmation of the sale to and purchase by him. He bad paid the full amount of the purchase money into tlie registry of the court.. This he paid for the title to the land and for its possession from and after confirmation of the sale. It was the .right and duty of the court to conserve this right of possession, in a sense, to see to it when its powers were invoked, that tlie purchaser got what he had paid for it. He did not get all that the court sold him and for which he had paid. He had been kept out of possession for a year or so. The possession for this period was a part of what the court had sold him and he had paid for. This part of the consideration for his money had been enjoyed by the appellants for whom he had paid the money. It is obviously unequitable that they should have this money and also the property for which he paid the money. It was to the last degree equitable that the court should make good to him the thing it had sold him, by, in effect, remitting to him the value of that part of tlie thing which had been kept from him by the appellants, who having enjoyed that part, were not entitled also to be paid for it. And in doing this, the court was merely exercising its power and duty to protect and conserve the purchaser’s possessory right acquired under its orders and decrees through a sale and by it. We need look no further for the court’s authority, but it might also properly *512be referred to the general principle that courts of chancery having acquired jurisdiction under some equity head of the subject matter and the parties, will adjudge and settle all rights growing out of the controversy or incident to it, though some of them separately considered are of purely legal cognizance. — Barnum v. Raborg, 2 Md. Ch. 516, 532; West v. West, 90 Ala. 438; Stein v. McGrath, 128 Ala. 175; Marshall v. Marshall, 86 Ala. 383; Va. & Ala. M. & M. Co. v. Hale & Co., 93 Ala. 542,

Affirmed.