Campbell v. Hampton

Deaderick, C. J., delivered the opinion of the court. This action of ejectment was instituted in the — 441 — ■circuit court of Crockett county, to recover a tract of land, lying partly in said county of Crockett and partly in Dyer county. The suit was begun October 5, 1878, against Thomas Hampton and Robert C. Coffman, and Ann E. Screws, W. C. Howell and D. B.. Dodson were afterwards made defendants, and all of them filed pleas of not guilty. Howell and Dodson also filed a disclaimer to all the land sued for, except a part thereof lying between two lines, claimed respectively by the parties as being the east boundary line of Ben. Smith’s grant, and more particularly described in' the pleadings. At May term, 1881, Charles R. Railey, upon his own application, was admitted as a defendant in said cause, he claiming said land in fee simple. Verdict and judgment were, for plaintiff for the land sued for, except twelve acres described in the verdict, and about 101 acres lying upon the east side of the tract, and west of the line claimed by plaintiff as the eastern boundary of the Ben. Smith grant ,No. 416, and east of the line claimed by the defendants as the eastern boundary of said grant No. 416. The jury found that the land' between these two lines was not included in the title papers of plaintiff, and their verdict to this extent was for defendants. From the judgment, in favor of defendants for said 101 acres of land, plaintiffs appealed. And from the judgment in favor of plaintiff, defendant Railey appealed. As soon as Railey was allowed to defend, he offered to file a plea in abatement, averring that neither he — 442 — nor his co-defendants had been served with a copy of the declaration. The court refused to allow said plea to be filed. This was obviously correct. The other defendants had long before filed their plea of not guilty, and if they had not been served with copy of declaration, the omission was waived and cured by their failure to. except or plead it, much less could the recently admitted defendant put in such plea for them. • No summons was served on Railey, but he was made a defendant on his own application at the trial term, and, under such circumstances, it was not necessary that he should be served with a copy of the declaration, which the statute provides shall be left with him, when he is brought into court by service" of summons. He was required to plead to the merits, which he did by putting in the pica of not guilty, upon which issue was taken. The record shows that the said Parker Campbell had procured original and counterpart attachments to issue from the circuit court of Dyer county, which were levied on the said land, that part in Dyer being levied on by the sheriff of Dyer, and that part of said tract lying in Crockett was levied on by the sheriff of Crockett county. The land was attached as the property of defendant Railey, and Campbell obtained, upon this proceeding, a judgment against Railey for about $4,500, and' a venditioni exponas was issued by order of the circuit court to the sheriff of Dyer county, commanding him to sell the whole tract for the satisfaction of the said judgment. ft was duly — 443 — sold by said sheriff, at the door of the court house in Dyer county, and Campbell became the purchaser, took a deed from the sheriff, and began this suit in Crockett county circuit court, to recover the land. The plaintiff in deraigning .his title to the land, introduced a grant No. 416, to Ben. Smith, with other grants and mesne conveyances down to a deed to Railey conveying 640 acres in northeast corner of the said Ben. Smith grant, less twelve acres conceded to be held under a superior title, by virtue of the statute of limitations. He also introduced the proceedings in his attachment case againt Railey and the sheriff’s deed to himself. The first question presented and chiefly argued, is upon the validity of the sale by the sheriff of Dyer county of that part of the tract of land lying in Crockett county, and the sufficiency of his deed to convey title thereto. Wé do not understand that any objection is taken to any part of the proceedings in the attachment suit, had in the circuit court of Dyer county, up to the time that the court directed the' Sheriff of Dyer county to sell the tract of land, as well that part lying in Crockett county as that part lying in Dyer county. But defendants do insist that the sheriff of Dyer county had no power to sell land in Crockett county, and that the order of the circuit court could communicate no such authority; that the sale of the Crockett county land was void, and that no suit could be maintained in Crockett county to recover the land upon such-void sale, nor to recover land lying in Dyer county. — 444 — Chapter 4, of the Code, treats “ of the place of bringing civil actions.” Section 2810, of that chapter, provides: “ In actions commenced by the attachment of property, without personal service of process, and in cases where the suit is brought to obtain possession •of personal property, or to enforce a lien or mortgage, or where it relates to real property, the attachment may be sued out or suit brought in any county where the real property or any portion of it lies, or where any part of the personal property may be found.” To this section, at the bottom, is appended the words, “act of 1847-8, ch. 173, extended.” Turning to the act of 1847-8 ch. 173, we find it entitled “an act to enable the circuit courts to do justice .in certain cases,” and it provides “that in all actions of ejectment, or trespass for injuries to real estate, where the tract of land lies in two or more counties, the court of the county in which process shall be served on the defendant or defendants, shall •have jurisdiction to try the title to the whole tract of land, in the action of ejectment, and award execution accordingly; . and in the- action of trespass to hear and determine the case, as though the entire tract lay in the county in which the suit was brought.” This act gave full power to try a cause for the whole tract of land lying in two or more counties, to the court of either county in which process was served on defendant, and to execute the judgment. Sec. 2810, of the Code, purports to be an extension of the act of 1847-8, and we think was intended to so operate in the oases specified so as to include the — 445 — two classes of cases, ejectment and trespass to realty. It does not so declare in distinct terms, but we are of opinion that the fair construction of the language sustains this conclusion. This section gives the jurisdiction, where it is sought to recover possession of personal property, or enforce a mortgage or lien, or where the suit relates to real property, to the court of the county where any part of the realty lies or any of the personal property is found. The jurisdiction is not limited to the part 'of the-realty or personalty found in the county, but extends to the property about which the suit is brought, or attachment sued out. To so restrict the application of this section, would be to make it but a re-enactment of other familiar statutes and well established common, law principles. We think it was intended, that where-a tract of land, for example, lies in two counties, all of which was subject to the same claim or demand, by a party, he might enforce .that demand against the whole, by suit begun in one of the counties in which part of the tract lies. A fair transposition of part of this section, which is in harmony with the whole of it, is “a suit which relates to real property; may be brought in any county where any portion of said real property lies.” And in such a suit the right to the whole would be passed upon although part of it was in a different county from that in which the suit was pending. Such, we think, is the intention of the statute. The extension of the act of 1847-8 indicated, com — 446 — sists in the application of its provisions to cases commenced by attachment, and to suits brought to obtain possession of personal property, to 'enforce a lien or mortgage, as well as to all cases relating to real property, as provided in sec. 2810 of the Code. This being so, we hold that the circuit court in Dyer county had jurisdiction to order the sale of the whole tract by the sheriff of that county, so as to make his jurisdiction effectual in the disposition of the land and the application of its proceeds to the satisfaction of plaintiff’s claim. The sheriff, having the right to sell, might convey the title to the purchaser. This view derives further support from sec. 3536 of the Code, under the head of “ mode of procedure in attachment cases.” That section declares that property attached, if not replevied, will be subjected to the satisfaction of the judgment or decrees, by sale on such terms, in the discretion of the court, as may be deemed for the interest of the parties, by order of sale or by other process necessary to effect the object. It was manifestly for the interest of the parties that the land should be sold as a whole, as it was nearly a square, and the county line divided it irregularly and unequally into two triangles. We are of opinion, therefore, that the sale by the sheriff of Dyer county was not void, and that the circuit court of the county of Crockett had jurisdiction to try this case, involving the title to the whole tract of land. Cases have been cited by defendant’s counsel holding a different view, but we rest our decision in this case upon our own statutes, enacted for — 447 — the purpose of conferring jurisdiction, in cases like this, upon our courts, so as to avoid multiplicity of suits. Nothing appears in the record entitling Railey to a reversal of the judgment. As before indicated, his title has been divested and vested in plaintiff. Although we are of opinion that the weight of the evidence is against the finding of the jury, as to the true eastern boundary of the grant 416, yet there certainly is evidence sufficient to support the verdict, and under our well settled rule upon this question we cannot disturb the verdict, although the circuit judge might well have done so. None of defendants have shown any title in themselves ; some of them were tenants of Railey while he owned the land; others subsequently became tenants of plaintiff, but there is some evidence to show that before this suit began they disclaimed their landlord’s title and gave him notice, and took and held possession of part of the land between the two contested eastern boundary lines in hostility to the plaintiff’s title. But being in possession they were allowed to show an outstanding title in third parties, an'd thus in part to defeat the plaintiff’s claim. We do not think there is any reversible error in the record, and affirm the judgment. The costs of this court shall be paid one-half by plaintiffs and the other by defendant Railey.