43 Kan. 475 | Kan. | 1890
Opinion by
The defendants in error brought an action against I. C. Webster to recover the possession of a tract of land situate in Jefferson county. They had a tax title on the land in controversy. I. C. Webster had a tax title and was in possession. One John M. Cowan was the original owner and had a patent from the government. While this suit was pending, W. B. Webster obtained Cowan’s title, and with the consent of I. C. Webster took possession of the land, and has held it ever since. Soon after W. B. Webster took possessiou, the district court of Jefferson county rendered a judgment in the action against I. C. Webster, and in favor of the defendants in error, for the possession of the land. A writ of restitution was issued commanding the sheriff to deliver possession of the land to the defendants in error. The officer returned the writ executed. Afterward the defendants in error showed to the court that W. B. Webster was in possession of said land, and claimed to be the owner; that he was
He brings the case here, and seeks to reverse the order for an alias writ so far as it affects him. We are met by the contention of the defendants in error, that he is without standing in this court. It is true that he is not a party to this action. He does not seek to reverse the judgment, or any intermediate order that involves the merits of the action, or any portion thereof. All he claims is, that in the attempt to enforce the judgment for possession against I. C. Webster, he
He is brought into court by a summary application after judgment, at the instance of Filley, and an order is made that determines his right of possession, as between him and Filley, adversely to him. We think he is entitled to a review of that order in this court, as it is in the nature of a final order as to his possession. Whether he is a purchaser pendente lite, or whether he is in collusion with his father on the question of possession, or whether he is entitled to the possession of the land by reason of holding the legal title thereto by purchase from Cowan, are questions that ought not to be determined on a motion made subsequent to a judgment in an action to which he was not a party. His right to possession by virtue of his title must be made the issue in an action of ejectment, and be determined, before it can be said to be an adjudication.
We recommend that so much of the order of the trial court that undertakes to determine his right of possession be reversed.
By the Court: It is so ordered.