Garrison v. Savignac

25 Mo. 47 | Mo. | 1857

Scott, Judge,

delivered the opinion of the court.

It is evident that as far as the merits of this case are concerned they are all against the plaintiff, as the possession, tbe disturbance of which he complains, was obtained by means of a writ of a habere facias possessionem which issued on a judgment, which since the execution of the writ has been reversed.

The defendant in the original suit, Alfred Savignac, and against whom the writ of habere facias possessionem was issued, testified that he never was in possession of the lot in controversy. The defendant in this proceeding, Francis Savig-nac, was turned out of the possession of the lot by the marshal, though he was no party to the suit, was not named in the writ, and though he had been in the undisturbed possession of it for six years prior to the bringing of the suit.

Had application been made to the court whence the habere facias possessionem issued, we see no reason why the court would have refused to award restitution, as it would not suffer its process to be perverted to the oppression of those who were no parties to it. It is said to he a settled rule of practice that no tenant who was in possession anterior to the commencement of an ejectment, can be dispossessed upon a judgment and writ of possession to which he is no party. (Ex parte Reynolds, 1 Caines, 500; Hickman v. Dale, Yerg. 149; McCord’s heirs v. McClintock’s heirs, 5 Litt. 305.) If the defendant Savignac had refused obedience to the process of the officer, as he had a right to do, it not being against him, the court, under the circumstances, never would have allowed a writ of attachment against him. (Adams on Ejectment, 310.)

As the officer had no authority to dispossess the defendant, and as the defendant refused submission to his authority, but yielded to force, and returned to his possession so soon as the force was away, we can not say that the plaintiff by such means acquired such a possession as would entitle him to the remedy he has adopted. It is clear that if the officer had applied to the court for aid in dispossessing the defendant it would have been refused him, and there is no reason why the plaintiff, by taking the law in his own hand, should be in a better situation than if he had appealed to the law.

We are of opinion that a sanction given to this proceeding would be tlie means of creating a precedent that might be productive of much injustice and oppression. Just think of it! A man who has been in possession of his premises for sis years; another, wishing to obtain possession of them, will not sue the actual occupant, but brings a suit against a stranger who never was in possession of the premises — who neither knows nor cares any thing about them. Against such a defendant a judgment is a thing of course. A writ is afterwards sued out, and the real tenant, who is no party to the proceeding, and who may never have heard of it, is turned out of house and home without a moment’s warning. The mere possession of land is frequently a matter of much importance where there is to be litigation respecting its title, and by sanctioning this proceeding an opening will be made whereby one may obtain possession of land, his title to which he was unwilling to expose in a court of justice. The case of Higginbotham v. Higginbotham & Clark, 20 B. Mon. 309, is one in which the same defence to a writ of forcible entry and de-tainer was set up that has been made in this suit. The defendants did not succeed; but that was not on the ground that their defence was not properly conceived, but that the facts in evidence did not make it out; had the defence proved here been made out, the case is an authority for saying that it would have been a valid one.

Judge Ryland concurring,

the judgment will be reversed, and a judgment for the defendant;

Judge Leonard absent.