19 Ala. 734 | Ala. | 1851
The plaintiff in error brought an action of ejectment to recover a lot of ground in the city of Mobile. The declaration and notice having been served on Lewis and Otis, tenants in possession, and they failing to appear, at the Fall Term of the Circuit Court, 1841, the plaintiff took judgment by default against the casual ejector, and a writ of habere facias3
At the Spring Term, 1842, Oliver Holman and Agnes Howard moved the court to be restored to possession of the locus in quo, and exhibited affidavits showing that they had been turned out of possession by the writ so executed by the sheriff, that they had no notice, &c., and propounding their interest as heirs of Abner Holman, they prayed to be admitted to defend. The Circuit Court rejected their application, and upon their writ of error to this court, the judgment was reversed. At the Spring .Term, 1843, the cause having been remanded, the Circuit Court made an order allowing the said Holman and Howard to come in and defend, and thereupon they entered into the usual consent rule, and pleaded not guilty. After a verdict for the plaintiff, and a new trial, at the April Term, 1848, the said Holman and Howard, by leave of the court, filed their plea, setting forth “ that since .the last continuance of this cause, viz., on the 28th day of December, 1847, the President, Directors and Company of the Bank of Norfolk, a company incorporated and residing in the State of Massachusetts, obtained a judgment in ejectment, for a moiety of the premises, in the Circuit Court of the United States for the 9th Judicial District, in which suit the lessees of the said Hqward became parties as tenants in possession. And the said ejectment was brought upon a mortgage held by the said bank upon the said property, ■ which mortgage was given prior to tho possession of the said defendants by a party claiming to hold title from their ancestors, and which was paramount to their, claim of title, and the said suit was an adversary suit. And the said.Holman and Howard further show and allege, that at the-— Term of the Court of Chancery for the First Chancery District, in a suit to foreclose the said mortgage, upon a .bill filed by the said bank, wherein the said Holman and Howard were prayed to bo made defendants, such proceedings were had, that by. the. decree of the said court, the promises were declared to be subject to the said mortgage debt, which decree was afterwards, viz., at the --Term of the Supreme Court, affirmed, and by the final decree of the said Chancery Court, made since the last continuance, it rvas ordered that the former orders and -decrees be carried into effect. And tho said bank have taken possession of the entire premises under the title afore
To the foregoing plea the plaintiff demurred, which demurrer was overruled. He then replied that he had no notice of the said mortgage and recovery in ejectment, as set forth in the plea, &c-To- this replication the defendants demurred, and the court sustained the demurrer.
The plaintiff declining to proceed further, the court gave judgment that the defendants go hence and recover their costs, &c.
The legal sufficiency of this plea is the question to be decided.
It is laid down in Comyn, that if land.be recovered by a stranger pending the writ, it thereby abates; but if the recovery -was not against the defendant, but a stranger, it is no plea; so if it was by collusion; so, also, if the tenant enfeoff another pending the writ, and .afterwards disseize his feoffee, who recovers against him, such recovery does not abate the writ; nor will a recovery by nil dicit have this effect, if the judgment of recovery was upon a writ brought after the first writ was purchased; nor a recovery by render or default. — Comyn’s Dig. tit. Abatement, H. 54,. 1, 2.
The same author, speaking of the form of the plea, says u that if a recovery be pleaded, it ought to be pleaded that execution is also sued.” We have been unable to obtain the old authorities to- which he refers, so as to ascertain whether the rule stated by him applies solely to real actions, or is extended so as embrace the mixed action of- ejectment. The only American case referred' to.by the editor of Comyn is Walcutt v. Spencer, (14 Mass. 409,); where the court, per Jackson,. J., recognize the rule stated, by Comyn as applicable to writs of entry at common law. There is much reason in holding that in a writ of entry, where the defendant is commanded either to deliver seizin of the land to the demandant,, or show cause why. ho will not,, to allow him to set up. in abatemeut of the writ that he cannot comply with its mandate, since he has, puis darrein continuance, been ousted by title paramount to his, or evicted by an adversary judicial proceeding.. The. tenant, in such case ceases wrongfully to with-
But we do not think it good for any purpose. If the title of the bank be superior to that of the plaintiff in ,this- action,, the-
.Upon the whole, we are of. opinion that the plaintiff should he permitted,to try his title,,.and.if the hank, or any one else in possession when this suit was .instituted, claims superior right, the .rules governing this action, as declared by the several statutes ¡and the rules of co.urt above referred to, and recognized hy this ..court in Howard & Holman v. Kennedy’s Executors, (4 Ala. 592,) furnish a, clear remedy for ..asserting and maintaining that i right.
The judgment is reversed and the cause.remanded,