Emerson v. Sansome

By the Court, Sprague, J.: The Sheriff’s deed of February 13th, 1869, transferred to the plaintiff all the interest the defendant had in the land in controversy at the date of the levy of the executions thereon, under which the sale thereof was subsequently made to plaintiff by the Sheriff) and no subsequently-acquired right or interest in such lands by the defendant could inure to the plaintiff as purchaser at such execution sale. For would such sale, followed by a Sheriff’s deed to the purchaser, estop the defendant from asserting a subsequently-acquired interest or right of possession in such lands, as against the right of possession of and interest therein sold under execution and transferred by the Sheriff’s deed. It is apparent from the record that at the date of the levy of the executions by the Sheriff, and at the date of the sale of the lands thereunder—also at the date of the Sheriff’s deed to the purchaser at such sale—the demanded premises were public lands of the United States; that defendant was in possession thereof, claiming right of possession merely, without title or any vested interest therein, as against the United States. This possessory claim of defendant, and nothing more, passed to the plaintiff by virtue of his purchase on execution sale and subsequent deed of the Sheriff. By the subsequent entry of the same lands as a homestead by the defendant, on the 1st of February, 1870, under the Act of [556] Congress of May 20th, 1862, he acquired, as I understand this Act of Congress, an interest in the lands and the absolute right of possession from the paramount proprietor, which possession, if actually continued for the period of five consecutive years from the date of the entry, will, under the Act above cited, entitle him to a patent therefor, on proof being made that he has resided on or cultivated the same for .such term of five years, without further payment of money. The defendant then, by his homestead entry, acquired from the paramount proprietor a right and interest in the lands which he did not possess at the date of the levy and sale on execution, and this newly-acquired right and interest is in no way connected with or dependent upon his prior possession or interest which was sold on execution against him, but is an independent, substantive interest, vesting an independent, absolute right of possession acquired directly from the paramount proprietor. This interest and right of possession presented by defendant’s supplemental answer is á complete and valid defense to the plaintiff’s suit for possession, based upon his acquisition of the defendant’s former simple possessory claim. I am of opinion, therefore, that, upon the facts as presented by the findings of the Court below, judgment should have been rendered for defendant upon the issue as to the right of possession tendered by his supplemental or amended answer. This, however, could not relieve the defendant from his responsibility to plaintiff for the rents and profits of the premises from- the date of the Sherifl"’s deed to plaintiff up to the date of defendant’s homestead entry of the premises, or for so much of such period as defendant occupied the same. Judgment reversed, and cause remanded for further proceedings.