Long v. Neville

By the Court, Sanderson, C. J. This is an action for damages against a Sheriff and his sureties for his neglect and refusal to execute a writ of habere facias possessionem. Judgment of nonsuit was rendered in the Court below. The facts disclosed by the plaintiffs’ evidence are substantially as follows: The plaintiffs commenced an action of ejectment against two persons by the name of Hull, who were in the actual possession of the land at the time the action was brought. The Hulls were in possession as tenants of one Ellis, who attempted to intervene by petition, as provided in the six hundred and sixty-first section of the Practice Act; but the plaintiffs demurred to his petition and the demurrer was sustained by the Court. The Hulls made default, and judgment was regularly entered against them and them only for the possession of the land. Pending the action of ejectment, Ellis brought an action against the Hulls under the thirteenth section of the Act concerning forcible entry and unlawful detainer, in which he obtained judgment and dispossessed the Hulls.

Afterwards Ellis leased the land to one Brown, who was in possession at the time the Sheriff received the writ. No notice of Us pendens was filed in the Recorder’s oifice, nor had Brown actual notice of the pendency of the action. Upon this state of facts the Sheriff refused to execute the writ.

The only question involved in the case is whether the Sheriff, upon the facts stated, could lawfully dispossess Brown under the writ. If he could, he was bound to do so; and, having failed and refused, he and his sureties are liable to the plaintiffs for such damages as they may have sustained by reason of such refusal.

In what cases notice of lis pendens must be filed.

The question involved is wholly unaffected by the twenty-seventh section of the Practice Act relating to notice of lis pendens. By its own terms that section does not apply to actions affecting the possession of real property, but, on the [135]contrary, is confined to actions affecting the title thereto. Actions of ejectment do not affect the title, but the possession. The title remains after judgment precisely where it was before, and is only brought into the case for the purpose of aiding the Court in determining to whom the possession belongs. The judgment transfers the possession to the plaintiff if he shows a better right to it than the defendant, but the plaintiff does not thereby acquire any better or other or different title than he had before; on the contrary, he goes into possession under whatever title he may have previously had. He goes into possession according to his title, and the title and the possession unite. If he has a freehold interest he goes in as a freeholder ; if he has a chattel interest he goes in as a termor, and if he has no title at all he goes in as a trespasser. (Tillinghast’s Adams, 327; Chapman v. Armistead, 4 Mumford, 390.)