South Beach Land Ass'n v. Christy
Before: Crockett
Synopsis
Party hot Amenable to Writ of Restitution.—A party in the actual possession of land at the commencement of an action of ejectment, and holding adversely to the plaintiff, is not amenable to a writ of restitution issued in the action to which he was not a party.
Colorable Possession of Land.—Where a defendant in ejectment has taken possession of land in collusion with the plaintiff, for no other purpose than to afford such plaintiff a pretext to take possession under a writ of restitution, such pretended possession will be disregarded.
Writ of Bestitution.—If a Sheriff has wrongfully turned a person out of possession of land under a writ of restitution, be will be restored by the Court to the possession, on motion made for that purpose.
Reception of Irrelevant Testimony.—An order will not be reversed by the appellate Court on account of the reception of irrelevant testimony, if its reception does the appellant no harm.
By the Court, Crockett, J.: This appeal is from an order, restoring the respondent to the possession of a piece of land, from which he was removed under a writ of restitution issued in an action to which he was not a party. The proof shows satisfactorily that he was in the actual possession at the commencement of the action, holding adversely to the plaintiff, and of course was not bound by the judgment or amenable to the wilt of restitution issued thereon. It is equally plain on the proofs that the pretended and colorable possession of Christy was collusive, and that his nominal and temporary occupation, such as it was, had no other purpose than to afford a pretext to the plaintiff, on which the possession might be taken under the writ. If the Court improperly admitted in evidence the. record in the case of Bensley v. Christy et als., it was an error which did the appellant no injury, inasmuch as there was ample evidence without this to justify the order restoring the respondent to the possession.
Order affirmed.
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