Bagley v. Stephens

Bleckley, Chief Justice. 1. The first question is, whether the plaintiff in error was an intruder? He rests his claim of right upon his so-called purchase at the executor’s sale, and his entry under that purchase. He does not pretend, however, that he complied with the terms of sale, or any part of the terms. He was to make a cash payment of one-third of his bid and give notes for the balance. He paid nothing, and gave no note, nor did he tender either. The executors granted thirty days to make the payment, and then one or more of them extended the time thirty days longer-The first thirty days expired, the second thirty expired, and still nothing was paid or tendered, and up to the time of trial, he had not, so far as appears,-offered to pay one cent, nor had he given or offered to give his note for the deferred payments or any part of them. The sale took place on the first Tuesday in November, 1885, and the process to eject him as an intruder was sued out the 5th of February, 1886. He contends that he entered under his purchase by the express consent of the executors, but this they deny; and they support their denial by the strong circumstance that all the lands of the estate, including this tract, were rented out before the sale, for a term which had not expired and would not expire until the first of January following. If it be said that there were other circumstances conflicting, in some degree, with the testimony of the executors, this conflict was for the jury, and they settled it. They were well warranted in finding, not only that Mr. Bagley had no right to the possession, but that he did not in good faith claim any legal right to it. We cannot see from the record that there was the shadow of justification for his holding. Failing in every respect to comply with the terms of sale, he could not fairly and honestly consider himself entitled to any [307] thing by reason of that sale, if he is a man of sound memory and discretion. 2. The remaining question is, whether Stephens had such an interest as would entitle him to sue out the process. He purchased from the executors at private sale, paid part of the purchase money, gave his notes for the balance, and took from the executors a bond for titles. When he did this, the executors told him to go and take possession. His purchase, even if the will of the testator confers no authority upon the executors to sell at private sale, together with express direction to enter into possession, entitled him to enter as against a wrong-doer — a mere intruder. If he acquired no interest in the land itself, he did acquire an interest in the possession, and had the rights of a tenant under the executors, if no more. And it is right to the possession, not to the land, which the statute requires as the foundation on which to expel an intruder. Code, §4072. We have no difficulty in holding that, under the evidence, Stephens was entitled to sue out the process. He stated in his testimony that his purchase was made about May 10th, 1886, but this, no doubt, was a mistake in the date, for the proceedings were commenced before that time, and the general tenor of the evidence shows that his purchase was prior to the commencement of proceedings. We need not deal specifically with the several grounds of the motion for a new trial. They are all disposed of adversely by what has been said. Judgment affirmed.