Haynes v. Baker

J. R. Swan, J. Possession of land is an estate therein which may ripen into the right of possession and the right of property. If a judgment debtor is in possession of land, it may be levied upon and sold ; for he has an estate recognized by the common law, and to a considerable extent protected by the occupying claimant law. Whether, when such possession of a judgment debtor is united with an equitable estate, a sale on execution will carry with it such equitable estate, has never yet been expressly decided by the Supreme Court of this State. But if the judgment debtor has no estate whatever in lands but an equitable one, that is to say, if he holds simply a contract of purchase or title bond, and is not in possession, there is nothing for the judgment to operate upon as a lien ; and there is nothing in fact to levy upon or sell [256] on the execution but the contract of purchase, which is, at law, a mere chose in action. Hence a mere equitable interest in land, the judgment debtor not being in possession, cannot be seized and sold upon execution at law. Roads et al. v. Symmes et al., 1 Ohio Rep. 281; Douglass v. Houston et al., 6 Ohio Rep. 156; Scott v. Douglass, 7 Ohio Rep., Pt. 1, 227 ; Baird v. Kirtland & Fowler, 8 Ohio Rep. 24. In the case now before the court, the judgment debtor was not in possession of the land. The case therefore comes within the principle recognized in the decisions above referred to. Demurrer sustained, and bill of review dismissed.