Bigelow v. Smith

By the Court. — Lumpkin, J. delivering the opinion. The Act of 1823, Cobb 512, provides that, “when any Sheriff or Coroner shall sell any real estate by virtue of, or under the authority of any execution, it shall be the duty of such Sheriff or Constable, (as the case may be,) upon application, to put the purchaser, his or her agent, or attorney, in possession of the real estate sold; Provided, That this Act shall not authorize the officer making the sale, to turn out any other person than the defendant in execution, his heirs, or their tenants; if such other person were in possession at the term of the rendition of the judgment; or if such person has acquired such possession under the judgment of a Court of competent jurisdiction, or claim under the person or persons acquiring such right by the judgment of such Court.” By an examination of this and the several other statutes, relating to the same subject, it is apparent that possession was intended to be given, only as against the defendant in execution, and those holding under him. And, conceding this to be the true construction of the law, the applicant had made out a prima facie case, so as to entitle him to a writ The land was sold as the property of Smith. He was in possession at the time of the rendition of the judgment, when the sale took place, and when this application was made. But [321] Lyan comes in and shows for cause against the rule: 1st. That Bigelow bought the land for Smith, and not for himself. And secondly, in terms of the Act recited, that he himself had acquired possession of this tract of land, under the judgment of a Court of competent jurisdiction; and that Smith is now in as his tenant. If this be so, Smith cannot be summarily ejected. But why should Bigelow, instead of being remitted to his action, not be allowed to traverse the return of Lyan ? Having brought his case within the statute, why refuse him the relief which it gives, without a hearing ? And why not settle this controverted title in this way, as well as by an action at law ? For refusing this privilege to the purchaser, we are constrained to reverse the judgment. Judgment reversed.