Noyes v. Brooks

Opinion by Beaver, J., In an equitable ejectment regularly brought and writ regularly served, a judgment was regularly entered upon the verdict of a jury after trial. A writ of habere facias possessionem was, upon application to the court, allowed, which one of the defendants, in common with his alleged landlord, seeks to restrain or to limit as to one fourth of the property involved, upon the ground that subsequently to the judgment in ejectment, he became the tenant of Sidney F. McCormick who held the title to the undivided fourth part of the premises, the right to the possession of which was settled in the ejectment, by the conveyance from James Brooks, who was not served, and, so far as the record shows, was not represented at the trial. The petition was dismissed by the court below and from that decree this appeal is taken. [253] The judgment in ejectment settled the right to the possession, so far as David Brooks was concerned. Whatever title he had at the time of the trial he was bound to assert. He could not acquire a title subsequently so as to use it to defeat the judgment rendered against him: Phila., Trustee, v. Hood, 3 Pa. Superior Ct. 373. His new title or a right to the possession based thereon could not be tried upon an application to stay the writ of execution. He must first surrender the possession to the plaintiff in the ejectment and then try his new title by an ejectment in which he would be the plaintiff. Nor is his landlord wronged thereby. In Johnson v. Fullerton, 44 Pa. 466, in which, after judgment in ejectment and writ of habere facias issued, an independent title was set up by the wife of the defendant, it was said: “ The landlord cannot after judgment and execution claim a writ of restitution, though he was not heard. His title is not affected by the proceeding, though his possession is.” The landlord’s title to the interest of James Brooks cannot be tried in this collateral way. If it be superior to that of the plaintiffs, he has his remedy by ejectment, but he cannot use the possession of one of the defendants in the ejectment to secure a possession which he did not have prior to the judgment. If it be said that he had the possession through David Brooks at the time the ejectment was brought, then he is bound by the judgment therein. If he was not in possession, he cannot place himself in the position of a party in possession by making a lease to David Brooks after judgment in ejectment for the same premises for which judgment was rendered against .the latter: Losee v. McFarland, 86 Pa. 33. The decree of the court below is affirmed and the appeal dismissed at the costs of the appellant.