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D. C. Morgan v. E. M. Johnson
Morgan, J.
On the sixteenth January, 1861, James Bell sold a certain tract of land, partly cultivated as a plantation, to E. P. Bell, his brother.
On the twenty-eighth January, 1866, Tully & Co. obtained judgment against James Bell for $1936, with interest at eight per cent, per annum from twelfth January, 1862.
Execution issued on this judgment in February, 1868. The property sold by James to E. P. Bell was sold under this execution. Plaintiff bought it. His deed was recorded in November, 1871. On the twenty-third August, 1870, E. P. Bell resold the property to James Bell. On the sixth December, 1873, James Bell sold the same property to E. M. Johnson.
Two years elapsed after Tully & Co. obtained judgment before they attempted to execute it, and three years elapsed after the sale before the purchaser caused his deed to be recorded.
This suit was instituted in September, 1874, six years after the sale, by the plaintiff against Johnson. It is a petitory action, in which he charges that he has a better title than Johnson has. He alleges that
[540] Johnson’s title was illegally and fraudulently obtained. He must, of course, recover upon the strength of his own title. The difficulty in plaintiff’s case is that he has no title.
It does not appear that the possession of either of the Bells, or of Johnson after them, was ever interfered with. The sheriff never had possession of the land which he pretended to sell. He never seized it, so far as this record discloses, except by giving notice .of seizure.
To constitute a valid seizure of a plantation, cultivated as such, the sheriff must take the property into his possession and custody. 22 An. 207, Kilbourne v. Frellsen.
As there was no legal seizure, there was no sale. Morgan acquired nothing by this act of the sheriff, and he can claim nothing under it.
This view of the case renders it unnecessary that we should pass' upon the many other questions raised by both parties.
It is therefore ordered, adjudged and decreed that the judgment of the district court be affirmed with costs.