36 Ill. 53 | Ill. | 1864
delivered the opinion of the Court,:
This case turns upon the question whether the court decided correctly in refusing certain proof offered by the appellant, the defendant in the court below.
The action was- for- forcible entry, and the plaintiff, it is admitted, made out a prima facie case, one which entitled him-to recover,.unless the defendant could establish a legal defense by the evidence he proposed to offer. -
To make out this defense,' the defendant offered in - evidence the writ of possession granted by the court, in Connection with the mortgage and decree of foreclosure and sale and deed by the master, for the purpose of- showing authority to take possession of the premises.
The record shows, that the foreclosure suit was in- the name of John Piatt, guardian of the children of John Thompson, against Abel Austin, David Mason; A. B. Codding, Warren 0. Willard and Jacob S. Chambers. The record shows, .that the writ of possession was directed to run, and -did run, against these defendants and all persons claiming under them since the commencement of the suit. The evidence, shows, that appellee went into possession some time prior to the- commencement of the chancery suit, and was in peaceable possession at the time of the commencement of the suit, and of the entry of the decree and issuing the writ, under David Mason, one of the defendants. He was not made a party to the - foreclosure suit, and was not, therefore, concluded by the decree. Story’s. Eq. Pl., sec. 151. A writ of possession can only go against the parties to the suit, or against those who have come into possession under them since the commencement of the suit. Frelinghysen et al. v. Colden, 4 Paige, 204; Van Hook v. Throckmorton, 8 ib. 33; Sea Ins. Co. v. Stebbins, ib. 565.
These cases go the full length of holding that a party in possession before and at the time of the commencement of the suit, is not affected by the decree, or subjected to the writ of assistance. This being the la.w, appellant could not use this decree and writ as a justification for his entry into the premises. Hone of the facts offered to be given in evidence, would. justify the forcible dispossession of appellee in the manner stated in the complaint, and as appears by the sheriff’s' return. By that, it seems-he put appellee out of the house, forcibly of course, and put Piatt in.
We understand the doctrine-to be Universally recognized, that no one can be injuriously affected' by a - judgment or decreé of any court who was not a party to such judgment or decree. The decree, therefore, and writ of assistance, were, as to appellee, of no effect. The former did not conclude his rights, nor could the latter be enforced against him. Piatt should have brought an action of forcible detainer against him, in which, from all that is shown; and proposed to be proved, he might recover the possession. • The rights of appellant are not superior to those of Piatt.
But it. is said, the sheriff having the writ of assistance, was bound to execute it, and he was, therefore, justified in putting the appellee out, and putting Piatt in possession.
The writ not being against appellee on its face, but against other and different parties, we are unable to see how the sheriff can be justified in executing it upon the appellee. Appellee was not named in the writ, and the sheriff was informed by it that the judgment was not against him, but other parties. He should then have returned the writ with the fact, that appellee was in the possession of the premises, and so he was unable to execute it.
Before the officer could justify under this writ, in an action of trespass brought by the appellee against him, he would be required to show, for his protection, a judgment, as well as the execution. Jansen v. Acker et al., 23 Wend. 480. Where neither contains the name of the party whose property is seized, we cannot perceive on what principle the officer can justify the seizure. But the officer is not a party in this proceeding, and if it be admitted he would be justified by the writ, if he were a party, the party suing it out and causing it to be executed in the manner it was executed, cannot be, justified, nor can he claim any rights or immunities under it, nor any person through him. Piatt having no right to dispossess appellee, by the mode he adopted, his assignee can acquire no rights thereby. If the appellee did attorn to Piatt, if his tenancy had expired and he held over wrongfully, the law, by its quiet and peaceful operation, afforded a complete remedy. This case is, in principle, quite like the case of Goodnough et al. v. Sheppard, 28 Ill. 81, in which it was held, that a person in the quiet possession .of real estate, claiming as owner, might obtain an injunction to restrain others from dispossessing him by means of a writ of possession issued on a judgment to which he wag not a party. So the appellee in this case could have applied for and obtained an injunction, or, waiving that, can resort to the action he now prosecutes, to restore to him the possession from which he has been forcibly and unlawfully ejected.
As to the verdict for one'cent damages, though damages cannot be allowed in such action, we will not reverse the judgment for that cause, the merits being so clearly with the appellee.
The judgment must be affirmed. Judgment affirmed.
I do not concur in so much of the reasoning of the court, as would render an officer liable in trespass for executing a writ of possession or writ of assistance. In my judgment a,n officer is protected in executing such a writ, whether rightly or wrongfully issued. The writ requires him to take possession of certain specified property, without regard to who is in possession of the same; and no court ought to allow its officer to be treated as a trespasser for executing its mandate.
