Casey v. Hanrick

Maltbie, Judge. W. A. Graves entered into possession of the land, as the vendee of E. G. Hanrick, under a verbal contract with his agent, G. W. Goodrich. He is not shown to have been deceived or in any manner misled as to the title. He paid, on taking possession, only the sum of one hundred dollars. He is not shown to have ever offered or desired to comply with his contract with Goodrich, neither is he shown to have been in any way damaged by the contract, or to have done anything whatever that would have entitled him to have called on E. G. Han-rick to make title to the land. On the other hand, one year’s rent of the land is shown to be worth all that Graves ever paid on his contract of purchase. This contract was void under the statutes of the State, and, in view of the facts proven, it could have been of no consequence to Graves whether E. G. Hanrick was the sole owner of the land. Graves sold Casey only such title as he had, which was none at all; nor was his claim based on any equity. Casey, knowing that he had no just claim to the land, agreed to buy from Goodrich, but when time for pay [48] ment came around he failed to pay as he had agreed to do, and, upon possession being demanded, he immediately purchased a title hostile to the one under which he was holding and seeks to defend under this title, without first surrendering possession to E. Gf. Hanrick. There is no dispute but that tenants or their privies in blood or estate are, as a general rule, estopped from contesting the title of their landlord as long as they hold the possession originally derived from him. Most of the exceptions to this rule are stated in 4 Wait’s Actions and Defenses, 259, as follows: “The tenant may, however, show that the landlord’s title has expired, or that some change has taken place in it since the lease; that he himself has purchased a title not inconsistent with his duty as tenant; or that he was induced to accept the lease or possession by fraud or mistake.” Casey has not shown himself to be within any of the exceptions stated. And we are of opinion that the title purchased by him was inconsistent with the duty that he owed E. G. Hanrick; that it was purchased in bad faith, and to allow him set it up in this suit would be to aid in the violation of his duty to defendant in error. From this it follows that the court did not err in ruling out all evidence tending to show that Casey had acquired an interest in the land, or in refusing to enjoin E. G. Hanrick from prosecuting his suit until Casey’s interest in the land could be ascertained. Nor do we think the court erred in sustaining exceptions to that portion of Casey’s plea in reconvention that sought to make G. W. Goodrich, one of Hanrick’s attorneys, a party to the suit for the purpose of recovering damages, on account of his alleged wrongful and malious acts in advising and directing the sheriff in executing the writ to dispossess Casey without giving him an opportunity to make a replevy bond. There can be no doubt but that Casey had a right to bring suit for all the damages he may have sustained on account of the wrongful or malicious suing out of the writ of sequestration, and to join all in the suit who in any way participated therein; but it does not necessarily follow that such suit could be maintained by way of plea in reconvention. It is a general rule that demands can not be set off, unless they. are mutual and between parties to the action. (Wait’s Actions and Defenses, vol. 7, p. 486.) Here, damages occasioned by Goodrich’s acts, outside of his duty as attorney, were sought to be set off against a claim due from Casey to E. G. [49] , Hanrick for rent. The writ of sequestration was properly sued : out, but Goodrich is charged with causing it to be executed in | an illegal, opressive and wanton manner. This was outside of ■his duty as attorney, and presumably outside of his employ¡•ment. It would be manifestly unjust to allow such damages to ■ be set off against Hanrick’s claim for rent, and we do not think that the statute ever contemplated that it might be done. In ‘ addition to this, it would tend to complicate matters very much i'if every one who might participate in the wrongful or malicious suing out of attachments or writs of sequestration should be made parties to the original suit by way of plea in reconvention. It was alleged, however, in Casey’s answer, to which exceptions were sustained, that the sheriff, in éxecuting the writ of sequestration, by direction of Goodrich, and also of Hanrick, refused to allow Casey a reasonable time to make a replevy bond, which he was able to make, and afterwards did make, and that the sheriff threw his household goods out of doors, and forced Casey’s daughter also to leave while it was raining and the weather otherwise inclement, without any necessity therefor, to gratify the malice of Goodrich, and that said acts were ratified, adopted and approved by said Hanrick. This, if true, was a gross abuse of the process of the court, for which the sheriff would be liable (Crocker on Sheriffs, p. 332, par. 845; 5 Johnson, 125), and if Hanrick ratified these acts, he would also be liable. The court should have submited to the jury, as a question of fact, whether the sheriff had abused its process in serving the writ of sequestration, and whether E. G. Hanrick was, under the facts of the case, responsible. In sustaining exceptions to this portion of Casey’s answer, we think there was error, for which the judgment should be reversed and the cause remanded. Reversed and remanded. Opinion adopted November 4, 1887.