Doe ex dem. Heydenfeldt v. Mitchell

COLLIER, C. J. It may be laid down, generally, that a mere possessory right to lands, accompanied with actual possession, may be levied on under a, fieri facias, and sold in satisfaction of the judgment. [16 Johns. Rep. 192; 18 id. 94; 3 Caine’s Rep. 189; 9 Cow. Rep. 73.] This principle is not, however, without its exceptions. In Rhea, Conner & Co. v. Hughes, [1 Ala. Rep. 219,] it was decided, that the mere possession and improvement of land belonging to the United States, no matter how valuable, cannot be levied on and sold under execution; and in Doe ex dem. Davis v. McKinney and McKinney, at June 1843, we determined, that if the possession be referable to an equitable title, the property can only be subjected to sale through the medium of a court of equity. This latter decision was influenced by .the 72 act of 1820, which declares that the legal title only shall be sold under execution, and that the equitable estate shall be Reached by suit in chancery. [See further, Smith, et al. v. Hogan, 4 Ala. Rep. 93.] There is nothing in the record, from which it can be inferred#that the possession of Taylor and Shackleford comes within any exception to the rule stated. It is said, that they had occupied the land about four years, built a house and made other valuable improvements on it. From all this, it may be presumed, that they were not mere trespassers, but rather, that their occupancy was legal. Under this view of the case, it will follow, that the' sale under execution was regular. In Doe ex dem. Davis v. McKinney and McKinney, ut supra, it was held, that a pur-1 chaser at a sale under execution, acquires all the legal rights of the defendant, [Jackson v. Gridley, 18 Johns. Rep. 98;] and the' latter becomes quasi his tenant, and will be deemed to continue in that character, until an actual disseisin or disclaimer on his part. [Jackson v. Sternbergh, 1 Johns. Cases, 153; Avent v. Read, 2 Porter’s Rep. 482.] If then, Taylor and Shackleford, upon being ousted, could have maintained an ejectment, the plain' tiff, who, by his purchase, was substituted to all their rights, is entitled to the same remedy. This, is not only a legal conclusion, from what has been said, but it is well settled upon authority, that a prior possession for a period short of that in which the statute of limitations will operate a bar, will entitle such possessor to maintain ejectment against one who has not a paramount title. [Smoot and Nicholson v. Lecatt; 1 Stew’t Rep. 598; and cases there cited. See also, Stodder v. Powell, id. 287.] It is needless to consider, with particularity, the charges given and refused by the circuit Judge to the jury; for it is clear, that the law was declared to be very different from what we have ascertained it to be. The judgment is, therefore, reversed, and the cause remanded.