Doe ex demise Garner v. Roe

Warner, Chief Justice. This was an action of-ejectment brought by the plaintiff against the defendant, to recover the possession of a house and lot in the town of Spring Place, in the county of Murray. The following statement of facts were agreed on by the parties at the trial: “That one Randall was the owner of the premises in dispute from the year 1856; that he sold and conveyed the same to Garner, the plaintiff’s lessor, on the 24th day of April, 1863, who went into the possession thereof, and continued in possession, either by himself or tenants, up to the month of January, 1869; that,on the 8th day of July, 1861, Whitemore obtained a verdict and judgment against Randall, from which Randall entered an appeal, which was pending until the 17th of October, 1866, when the final verdict and judgment in the case was rendered against him. An execution issued upon this final judgment on the 7th of December, 1864, and was levied on the property sued for and sold by the sheriff as the property of Randall, on the 5th of January, 1868, and purchased by Walker, who in the month of March thereafter, sold the property to Gibbs, the defendant, who has been in possession of it ever since. The Court charged the jury that the judgment entered up on the first verdict, from-which an appeal was taken in 1861, prevented an alienation of the property by the defendant, pending the appeal, and as it was admitted the plaintiff had not been in possession of the property for four years from the rendition of the final judgment, the plaintiff could not recover, to which charge the plaintiff excepted. The only question made in this case is whether a purchaser of real estate 99 from a defendant, pending an appeal from the first verdict and judgment thereon, is protected as a bona fide purchaser under the provisions of the 3525th section of the Code, when such purchaser has been in the possession of the property for four years from the date of the judgment on the first verdict, but has not been in possession of the property for four years from the date of the final judgment on the appeal trial. It is contended by the plaintiff in error that he is so protected, because that section of the Code declares that the property shall be discharged from the lien of any judgment against the person from whom he purchased. The first judgment on the verdict only bound the defendant’s property so far as to prevent an alienation of it by the defendant between the signing of the first judgment and the signing of the final judgment on the appeal trial: Code, 3523. The judgment signed upon the first verdict was suspended pending the appeal: Code, 3511. The plaintiff' could not have enforced the collection of his judgment by levy and sale of the defendant’s property until he had obtained his final judgment on the appeal trial in October, 1866, and it is'admitted that the plaintiff had not been in possession of the property four years from that time. It is quite clear, we think, that the time did not begin to run against the plaintiff in the judgment until he had obtained and could enforce it against the property of the defendant; and, therefore, the lien of the judgment was not discharged from the property purchased by the plaintiff from Randall, the defendant in that judgment. Let the judgment of the Court below be affirmed.