Mann v. McAtee

By the Court, Crockett, J. : In April, 1859, the plaintiff recovered a judgment against the defendant McAtee for the possession of the land in contest; on which judgment a writ of restitution, and afterwards an alias writ, were issued, both of which were returned unexecuted. About the month of January, 1860, the plaintiff died, out of this State; but letters of administration on his estate were not issued until June 10th, 1868, and on the 2d July, 1868, the administrator moved the Court for leave to issue a writ of restitution on the judgment. Notice of the motion was served on McAtee and on one Thomas Ilaley, who was in the actual possession of the premises. The motion was tried on the papers on file in the cause and upon affidavits; and the Court having denied the motion, the administrator has appealed. There are certain facts disclosed by the affidavits, which are not controverted; while certain other facts are denied by the adverse party. Both parties claim title under one Aughinbaugh, who, in January, 1855, conveyed the lot in controversy to the plaintiff Mann; but the deed was not recorded until March, 1858. In the meantime, in March, 1855, several months after the execution and delivery of the deed to Mann, Aughinbaugh conveyed to McAtee a larger tract, which included the premises in controversy, and the deed for which was immediately recorded; and McAtee having in some manner obtained the possession, Mann commenced an action in July, 1858, against him, to recover the possession, to which McAtee appeared and put in his defense. On the trial final judgment was rendered for the plaintiff in April, 1859, and it is on this judgment that the plaintiff asks for his writ of restitution. It further appears that whilst the action was pending, but before judgment therein, McAtee conveyed the premises in contest to one Robinson, who entered under his deed 'and [13]remained in possession until March, 1861, when he sold and conveyed said premises to one Robert Haley, who immediately placed Thomas Haley in possession as' his tenant, and has ever since had the possession through his said tenant. It further appears that at or about the date of the deed from Robinson to Haley, the latter obtained from E. B. Mastick a quitclaim deed for the premises: but the nature of Mastick’s claim or title does not appear. These facts are not disputed. But the plaintiff alleges, and his affidavits tend to prove, that at the date of the deed from Aughinbaugh to McAtee, Mann was in the actual and notorious occupation of the premises, and that McAtee had full and "actual notice of the unrecorded deed to Mann. These facts are, however, denied by McAtee.