Lankford v. Green

BRICKELL, C. J.- -The refusal to strike out a plea which is merely defective, not a nullity, is not revisable on error. The primary court may, in its discretion, refuse to entertain the motion, and put the party on his demurrer. — Johnson v. Wren, 3 Stew. 172; Townson v. Moore, 9 Port. 136; Stanley v. Hill, ib. 368; Turner v. Brown, 9 Ala. 867; Johnson v. McLaughlin, ib. 551; Williams v. Hinkle, 15 Ala. 713; Duncan v. Hargrove, 22 Ala. 150; Mahoney v. O’Leary, 34 Ala. 97. The rule is changed, when the court, in the exercise of its discretion, entertains the motion, and improperly strikes out the plea, if an exception is taken.' — Mahoney v. O’Leary, supra. The plea of the bankruptcy of the plaintiff, may be demurrable but it is not a mere nullity. The cause of action would survive to the personal representatives of the plaintiff on his death, and would also survive the death of the defendant. — Code of 1876, §§ 2920, 292 L. It would consequently pass to an assignee in bankruptcy, and if it existed when the plaintiff became bankrupt, could subsequently be pursued only by the assignee. The demurrer to the plea does not appear from the record to have been acted on by the Circuit Court, and we do not inquire whether it was well taken or not. The action is trespass guare clausum fregit, and to maintain it, the plaintiff is not bound to show title. Possession, whether founded on a good or bad title, will support the action against a stranger or wrong-doer. Or, the possession may be tortious, and a wrong-doer cannot justify or excuse an invasion of, and injury to it. — Duncan v. Potts, 5 Stew. & Port. 182; 2 Creen. Ev. § 618. The title may be, and often is, drawn in question; the gist of the action is nevertheless the injury to the plaintiff’s possession. When the trespass was committed the evidence is undisputed the plaintiff was in actual possession, and the trespass was subsequent to the plaintiff’s discharge in bankruptcy. The plea of bankruptcy was therefore on the evidence merely frivolous. Nor were the schedules in bankruptcy appended to his petition relevant evidence. If title to the premises had been involved, and it had been necessary for the plaintiff to show title in [319] bimself at the time of the bankruptcy, 'these schedules would have been admissible. • If the premises were embraced in them, the title by operation of law would have been divested; or, the failure to embrace them, would have been a fact for the consideration of the jury in determining the existence of the title. The action is founded, not on title, but on an actual possession existing subsequent to the discharge in bankruptcy, and the schedules were irrelevant. The defendant, as a fact tending to show his possession of the premises, and an unlawful entry on them by the plaintiff, offered in evidence the record of an action in the nature of ejectment he had instituted against one Mary Lankford, the judgment therein, which was by default, and the writ of possession issuing thereon. The only execution of the writ as shown by the evidence, was that the sheriff and the defendant rode on the premises, and the sheriff said to the defendant, “Here is your land; I put you in possession under the writ.” Though no one was then residing on the land, there were, as it seems, several persons cultivating it, one of whom in a few days attorned to the defendant. The defendant offered no evidence of title in himself, and none that Mary Lankford was in possession at or prior to the commencement of tbe suit against her, nor, indeed, that she ever had possession. Tbe evidence of the plaintiff was, that for many years, except a short time during the war, he was in actual possession of the premises, and was in possession when the action against Mary Lankford was commenced. We tbink it plain the Circuit Court erred in overruling the objections to this evidence. A judgment in ejectment, or in the statutory action in the nature of ejectment, binds only parties and privies. It is not evidence against strangers ; and a party in possession at the time of its commencement who is not made a defendant, is a stranger to it, and cannot be affected by it. — Smith v. Gayle, MSS. It is also equally plain there was not an execution of the writ of possession. There was no dispossession of any tenant who was cultivating the premises, nor any notice given the tenant to yield possession to the defendant. In the execution of a writ of possession, it is the duty of the sheriff to place the plaintiff in the actual and peaceable possession of the premises recovered. If the tenant in possession does not yield peaceably and quietly, he must be removed, and until he is removed, the writ is not executed. — 2 Tidd’s Pr. 1246-7; Freeman on Executions, § 474; Farnsworth v. Fowler, 1 Swan, 1. The defendant did not obtain possession by quietly riding on the premises with the sheriff, and the idle declaration, “Here is your land; I put you in possession under the writ,” of which [320] those who were in actual possession had no notice or information. Possession of lands is not. legally transferred by such ceremonies. The judgment is reversed and the cause remanded.