Bumpass v. Webb

COLLIER, C. J. 1. In respect to-the admission of the record of the cause in which the execution issued, under which the defendant in. error purchased, we can discover no error. There was no necessity for producing the sheriff’s deed to the premises, in order to let in proof of the record; conceding that, that paper was an essential link in the chain of title, yet its non-production, did not warrant the exclusion of other evidence material and pertinent. The plaintiff in error could not have been prejudiced, for it was entirely competent for him to have asked the Court to instruct the jury as to the legal effect of evidence; and if he deemed it necessary to his protection, he should have called upon the Court to charge them, that in the absence of the deed, the case had not been made out. It may be observed, that the plaintiff in error, was the defendant in the execution referred to, and that the land now in dispute, was sold as his property. Now it may be true, that where one is seeking to recover upon a title acquired by purchase at a sheriff’s sale, he should show a judgment, yet that principle is not applicable to a case circumstanced as the present. Here, the objection is not that there was no judgment, but, that the judgment had been suspended in its operation by an injunction, which for any thing appearing to the contrary, is still in full force. The injunction did not vacate the judgment, it merely inhibited its execution, until the case should be [112] passed on by a Court of Equity. Should an execution issue in the meantime, is despite of the injunction, it would not be void, but merely voidable, and a sale under such process before it liad been vacated by the judgment of a Court, would confer upon the purchaser a good title. The injunction bond was not essential to charge the plaintiifin error,because,as wehave seen, independently of it, there was a judgment against him. The non-production then, of the proceedings in Chancery, could not at all prejudice, the right of the plaintiff below to recover. 2. The idea that the defendant, in an action to recover the possession of land, and damages for its occupation, is not chargeable with damages beyond the period of his actual possession, where he ceases to occupy pending the suit without notice to the plaintiff, is clearly indefensible. The plaintiff is not bound to know, whether the land continues to be occupied, nor if the possession becomes vacant, pending the litigation, is he obliged to inquire, whether, the defendant in removing from it, intends to relinquish to him the title and possession. But if the defendant would put an end to further controversy, it is very easy for him to cause a disclaimer to be made in open Court, or in some other manner to renounce his title, and yield to the plaintiff the possession; when this is done, he may insist upon an abatement of damages, at least after the close of the current year. 3. The omission to describe the premises in question, in the verdict and judgment, is unimportant. They are described with sufficient particularity in the declaration, and to that the verdict and judgment must be understood to’ refer. True, the judgment entry is eminently informal, but it is sufficient to inform us what the Court intended to do, and is conclusive of the matters in controversy. 4. It is objected that the damages laid in the delaration, did not authorise the assessment made by the jury. The precise question raised by this objection, was made in Campbell v. Judson, at June, ’36. There, the damages were laid at two thousand dollars, and the jury assessed them at five thousand one hundred and twenty dollars. The Court considered the case of McWhorter v. Standifer, (2 Porter’s Rep. 519,) as decisive of the question, and consequently affirmed the judgment of the Circuit Court, without a written opinion. [113] 5 and 6. In respect to the entries in the record, quashing an execution, and setting aside anon-suit and chargingthedefendant with the costs of the- term, it may be said, that unexplained as they are, it is difficult to understand them. The record no where informs us, that an execution had issued in this cause, and it is insisted that we must intend, that the execution referred to, is the one under which the land in dispute was sold. Such an intendment, cannot, with propriety be made from the brief recital in the record. But even if.it c«uld, the plaintiff in error, would not be benefited, as the quashing of an execution, will not necessarily divest a purchaser’s title. The record contains no entry of a judgment of non-suit, nor does it appear that an execution for the costs of a term issued against the plaintiff in error; It may then, in the absence of any thing to explain it, and under the influence of the rule, which makes all reasonable intendments in favor of the proceedings of Courts of justice, be supposed that the entry was a mere correction of a decision of the Court, not then recorded ; and serves to show that the plaintiff should not have been non-suited, and that the defendant, for some default, should pay costs, not that the costs were the consequence of setting aside the non-suit. Or, it is possible, that there is a clerical error in charging the defendant, instead of the plaintiff with costs, which the Circuit Court can correct. Be this as it may, we are strongly inclined to the opinion,, that such an entry as that shown by the record, even though in itself erroneous, must be controlled and corrected in some other manner than by a writ of error, to revise the final judgment. This view is decisive of the case, and the consequence is, that the judgment of the Circuit Court is affirmed.