Seymour v. Morgan

McCay, Judge. We affirm the judgment in the case, on the sole ground that the complainant has nob made out a case for equitable jurisdiction. He has a good remedy at law, and equity will not interfere. At common law a purchaser of real estate only gets the defendant’s title. The sheriff was not authorized to put him in possession, as our Code, section 3801, only authorizes the sheriff to turn out the defendant, his heirs or their tenants, or assignees since the judgment. It appears plainly in this bill, that the present owners of this land, though they are assignees of the defendant, are not assignees since the judgment, and the sheriff has no right to turn them out by notice of the sale. If he does so he is a trespasser, and every remedy will lie against him and those he puts in possesssion that will lie against any other trespasser. It would be giving very extraordinary power to a sheriff’s sale to say that the sheriff might put the purchaser in possession by turning out all who cannot set up a good title against, the sale. It would be a very short way to change the possession in case of a dispute about the title. The statute is the rule. The sheriff may turn out the defendant, his tenants and his assignees, since the judgment; further than this he cannot go. The fact that the lien of this judgment dates back does not help the case. One buying land after a judgment against the owner which has been vacated by an appeal, buys it with notice and subject to the final judgment, but he is no more a purchaser after the judgment than one who buys with notice of the vendor’s lien or with notice of any other fact which will make the land subject to a judgment against his vendor. What may be the real rights of these parties, is not now before us, and we give no opinion on the subject. We therefore simply say, that under the facts as they are stated, Seymour does not stand as an assignee of the defendant in [204] the fi. fa. after the judgment, and cannot be turned out of possession by the sheriff in the summary way proposed, even though the purchaser at the sale may prove to have the superior title. Judgment affirmed.