Hathaway v. Phelps

The opinion of the court was delivered by Skinner, Ch. J. From the case it appears, that many questions were raised at the trial, and decided by the county court, and are again presented to this court for revision. A further question is here presented, or rather one not particularly noticed in the case, and upon which we feel constrained to decide, though with much reluctance, as it may arise from an omission made through inadvertence. This court will, and ought to presume, the proceedings and decisions of the county court to have been correct, unless the error is distinctly made to appear. If exceptions are taken to the opinions of the county court in the trial of a case, no other decisions but such as are noted in the cases excepted to, and no other questions but such as were then presented, ought here to be considered. From the case it appears, that the jury, by direction of the court, returned a verdict in favour of the defendant, for whom no evidence was given of a title or right of possession. He stands as a stranger altogether. Whether he entered under Foote, the administrator of Peaslee, or has any other real or pretended claim, does not appear. From the facts stated in the record, Erastus Hathaway was, prior to the tenth of November, 1818, the owner in fee of the premises. On that day, Foote, administrator of Peaslee, took the same in execution, and caused an appraisal to be made. E. Hathaway continued in possession till the 17th of May, 1820, when he conveyed to the plaintiff, who possessed up to the [88] time of the eviction complained of. It had been repeatedly decided by this court, and so appears to be the common law, that possession alone is sufficient to maintain ejectment against a stran- ^ that is to say, against one who intrudes upon the possession of ■ the plaintiff, and without right evicts him — 1 D. Chip. 141, Ellthorp vs. Deming — The same, 92, Persall vs. Thorp; and also Aden vs. Rivington, 2 Saund. 111.—8 East. 356.—4 Taunt. 547.—4 Johnson 202.—4 Mass. 239, 418.—-3 Wheaton, 224.— These decisions being correct, and it is perhaps too late to permit them to be questioned, if the defendant can set up an outstanding title, there are few cases in which the principle will avail the plaintiff. The defendant of course will show the right of the original grantee, and thus drive the plaintiff to show title in himself. No decided opinion is intended to be expressed upon this point, as there is another ground upon which we consider the verdict must be set aside. The debtor has a right to the possession of the premises for six months after the levy of the execution, and continuing in possession, he is by statute, made tbe tenant of the creditor, and subjected to pay rents for such period of time as he may possess. The case shows, that E. Hathaway, the debtor, himself continued to possess for eighteen months after the levy of the execution. As tenant then, he or any other person claiming under him, resting upon the title of the administrator of Peaslee, can recover against any one who may oust him. As the case is to be sent back to the county court for trial, it may be necessary, in view of the proceedings to be had there, that the other questions raised should be considered. The testimony offered by the plaintiff, tending to show corruption or malfeasance of the sheriff, and thereby to avoid the return upon the execution of the Administrator of Peaslee vs. E. Hathaway, was properly rejected by the court. The return of the officer is conclusive upon the parties and all claiming under them. The variance in the return of the officer, as appears from the record in the town clerk’s office, and in the office of the county clerk, is immaterial. In the town clerk’s record, the quantity of land is given, the length and course of the north and south lines, and the course of the west line; therefore no uncertainty can remain as to the course and length of the east line, as no other than a direct course from the extreme east point of the south line to that of the north, a distance of twenty-seven rods, and thirteen links, can give the quantity. The court have no doubt as to the right of the executor or administrator to satisfy his execution upon the real estate of the debtor. Although difficulties may present as to the liabilities and duties of the executor in relation to estate thus acquired, the right has been sanctioned by a long course of pro89 ceedine, and the title to real estate, to a great amount rests upon it. 5 J. P. Richardson, Btnj. Swift, and S. S. Brown, for the plaintiff. A. Aldis and Jas. Davis, for the defendant. Judgment of the county court reversed, and the cause remanded for a new trial. Prentiss, J. absent from indisposition.