85 F. 157 | 4th Cir. | 1898
Edward B. Wesley, a citizen of the state of New York, on the 13th day of February, 1893, instituted his action in the circuit court of the United States for the district of South Carolina against J. E. Tindal and J. R. Boyles, citizens of the state of South Carolina, to recover the possession of a lot of land, with the buildings thereon, situate in the city of Columbia, called “Agricultural Hall.” The defendants duly appeared and answered, each setting up two defenses, the first being a general denial of the allegations of the complaint, and the second a claim that the property in question was the property of the state of South Carolina, and in the actual public use of that state. The case came on for trial at the April term of said court, 1894, when the jury returned a verdict for the plaintiff, on which the court entered a judgment in his favor, against the defendants, for the' possession of the property. During the trial the state of South Carolina, acting through her attorney general, filed a suggestion that the property in controversy belonged to that state; that it was in actual public use; that the suit was, in effect, a suit against said state; and thereupon moved the court to dismiss the plaintiff’s suit. The court overruled the motion, and the state of South Carolina obtained a writ of error from the supreme court of the United States. That court affirmed the judgment of the circuit court of the United States for the district of South Carolina. South Carolina v. Wesley, 155 U. S. 542, 15 Sup. Ct. 230. The defendants, Tindal and Boyles, sued out a writ of error from this court to the judgment so entered against them, and this court, when the same came on to be heard, affirmed the judgment of the court below. Tindal v. Wesley, 25 U. S. App. 124, 13 C. C. A. 160, 65 Fed. 731. Said defendants then secured from the supreme court of the United States a writ of certiorari to this court, and, when the same was heard, the supreme court affirmed the judgment of this court. Tindal v. Wesley, 167 U. S. 204, 17 Sup. Ct. 770. The mandate of the supreme court having been filed in the circuit court for the district of South Carolina, the said Edward B. Wesley caused to be issued a writ for the delivery of the possession of the property to him, based on the judgments rendered in his favor.' At this time, June 14, 1897, S. W. Vance tendered to the court below his petition asking for a stay of the writ of possession, and for an order permitting him to be made a party defendant to said suit, with leave
The'plaintiff’s suit in the court below was the action of ejectment, and he stood upon the strength of his title, which he was compelled to sustain against all the world. The trial resulted in a verdict and judgment in his favor. From that judgment a writ of error was granted to this court, and the judgment was affirmed. The case then went to the supreme court of the United States by writ of certiorari, and the judgment of this court was affirmed. When the mandate of the supreme court reached the court below, the plaintiff, when endeavoring to enforce the judgment in his favor, finds the petitioner confronting him with the petition just described. The defense set up in this petition is, in substance, that which was pleaded by the defendants below when the case was tried to the jury, and it was then held to be without merit. The defendant Tindal, a state official, made the defense now relied upon; and the petitioner, Vance, another state official, claiming to be the tenant of the state, should not be permitted to plead it again. The judgment of the court below, in favor of the plaintiff, effectually bars this petitioner, and any one else who claims the right of possession of Agricultural Hall, because he is an officer of the state of South Carolina or a tenant of that state. The claim of the petitioner is absolutely without merit, for the property, the possession of which he claims, was by direction of the general assembly of South Carolina sold, and the proceeds of the sale appropriated by law to a special purpose. The petitioner, by his own showing, was not the
The allegations of the petition relating to the notice of lis pendens have even less merit, if that be possible, than those relating to tenancy. Under section 153 of the Code of Civil Procedure of South Carolina it is only the subsequent purchaser or incumbrancer who is protected by the failure to file the notice of lis pendens. The petitioner is neither, nor is the party for whom he pleads, under whose authority he claims his tenancy exists. So far as we can see from the record, and from the statutes of South Carolina, he is a mere interloper, who has taken possession of the property mentioned since the judgment of the court below in favor of the plaintiff was entered. As a litigant, he is a volunteer, and as such he comes in under circumstances which do not commend him to the favorable consideration of this court. If the defense set up by the petitioner is to prevail, — ■ if the judgment is to be opened and another trial had, — for (.he reasons alleged in this petition, then a way has been discovered to effectually destroy all judgments rendered for the possession of property entered on verdicts returned in the action of ejectment. If (he landlord, by changing the tenant, or by permitting a stranger to tin1 record to take charge, after- judgment is rendered and before the writ of possession issues, can thereby defeat recovery by the plaintiff, then the action of ejectment would not only become worthless, but the prosecution of it would be a judicial farce. The litigation brought about by the filing of this petition was an effort to deprive the plaintiff of the benefit of the judgment in his favor, and it was properly dismissed by the court below. This controversy has been fully heard, discussed, and reported, as hereinbefore referred to, and further consideration of the same is deemed unnecessary. The judgment of the court below is affirmed.