Snowden v. McKinney

46 Ky. 258 | Ky. Ct. App. | 1847

Judge Simpson

delivered the opinion of the Court.

This is an action of ejectment, brought against thedefendant in the execution, to recover the possession of land sold by the Sheriff.

The main question presented is, as to the necessity of notice to the defendant, to surrender the possession of the land to the purchaser, previous to the commencement of his action.

A purchaser of land, under execution is entitled to immediate possession; the defendant in the execution 13 not a tenant or quasi tenant of the purchaser, and therefore is not_ entitled to notice to quit.

The vendee of a Chaser of sold by a Sheriff under execution, is entitled to all the Tights of his vendor, and the same remedies to obtain the possession, liis purchase is not within the laws against champerty-

The purchaser under an execution having received a deed from the Sheriff and obtained the legal title, has an immediate right of entry on the land. The defendant in the execution does not stand in the relation of tenant, or quasi tenant to the purchaser. It is only where possession has been taken, or at least retained by the consent of the owner of the land, that he has no right of entry, and that the person'in possession is not regarded asa wrong doer until he has been notified to quit, or a demand has been made on him to restore the possession, which he has refused to comply with. Although the possession of the defendant in the execution is an amicable one, and consistent with the title of the purchaser, yet he is under a legal obligation, whenever the purchaser’s title is perfected, to surrender to him the possession of the land, the right to which he has acquired by his purchase. And, therefore, the defendant in the execution is not entitled to notice to quit, nor is any demand of the possession by the purchaser requisite, before he brings his action.

It follows also, from this reasoning, that there is no weight in the objection made to the title of the lessor of the plaintiff, who is not the purchaser at the Sheriff’s sale, but his vendee, that the deed to him is champertous and void. It does not result as a consequence, that because the possession of land is of such a character as not to require notice to quit, that therefore it must be deemed adverse. It has been held by this Court in the case of Griffin, &c. vs Dicken, (4 Dana, 561,) that when the vendor of land remained in possession after he had made a sale and conveyance, a deed made by the purchaser passed the title to his vendee, and was not champertous, because the possession so held should be deemed consistent with the title, and not hostile to it. The defendant in execution remaining in the possession of land after a sale and conveyance by the Sheriff, roust be regarded, particularly (as is the case here,) in the absence of all testimony manifesting the actual character of his possession, as holding in the same way, and a sale and conieyaftfi'e by the purchaser as passing the title to the' vendee.

That a circuit instrucTthe^nry nc„a!!i or noii'Suitj ana remarked “that evidence entitled' the piain«ot^avaUaWe'erwrrlfbehadbeen. instruction it given» hypothetiiiponV tíiedbeifef of the evidence.

In ejectment the on^the —'Lyof tie’ pnw’d^com" menced on the 20ili March, ’44, ■which was before TheWa’\bvSen.ce should be so sustain the verto°de’featit.

Turner for plaint iff; Caperton and Owsley for defendant.

The Circuit Judge did not, as is assumed by the assignment of error on that point, instruct the jury that the-evidence entitled the plaintiff to a verdict. In passing on the motion of the defendant to instruct, as in case of a non-suit, he decided that the evidence entitled the plain- * tiff to a verdict, and overruled the defendant's motion. -&-s the evidence before the jury clearly authorized a verdiet fof the plaintiff, there was nothing wrong in this decisión, although had it been given to the jury as an instruclion, it should not have been given absolutely, but hypothetically, on their belief of the evidence,

The demise is-laid in the plaintiff’s declaration, as having been made on the blank day of blank, 1844. The deed to th'e lessor of the plaintiff was executed oil the 20th-day of March, 1844, and'it is contended that inasmuch as the plaintiff failed to fill" up the blank with a , , , r . , , ‘ date subsequent to the time when-he acquired his title, that a construction which is least favorable to him, should be-given to the declaration 1 and such as would show that he-had no title at the date of the demise. To give it such a construction would-be entirely arbitrary, and-tend to- defeat, instead of promoting the ends of justice. Having shown the commencement of his title, if the date of the demise is to be fixed by construction, that would be most reasonable which should fix it at a period when the title would have authorized it to have been made. Such a construction would also have the additional recommendation of aiding in the support of a claim fully sustained by the evidence adduced on the trial.

Wherefore-, the judgment of the Circuit Court is affirmed.