McLeran v. McNamara

Myrick, J.: This is an appeal from an order staying all proceedings under a writ of possession issued in this action, so far as the same relates to or affects so much of a tract of land therein described as was in the possession of J. Callaghan and D. Callaghan at the time of the commencement of this action, and was in their possession at the date of said order.

It appears, from the affidavits used on the hearing, that in 1853 Gorham, Moore, Fitzpatrick, and Meiggs took possession of a tract of land containing about twenty-nine acres, and caused the same to be inclosed. They employed one May to occupy the premises and keep possession for them, and for that purpose built a small house on it. May remained in possession until 1858, when he was succeeded by Hollingshead, and he by Eyan, in the same capacity. In April, 1861, J. and D. Callaghan purchased from Moore, taking a deed of the premises involved in this motion (portion of the twenty-nine acres), having no knowledge that any person other than Moore had any interest therein or claim thereto, but being informed by Moore that the land was his, and that Eyan, the person then occupying the house, was his tenant. Eyan attorned to the Callaghans, who have been ever since, by themselves and their tenants, and are, in the quiet and peaceable possession of the premises, holding adversely to all the world. In 1865, the plaintiff, claiming as grantee under Gorham, commenced an action of ejectment against various persons, including the Callaghans and their tenants, to recover possession of a tract of land of about forty acres, including the premises claimed by the Callaghans. In 1872, that action was dismissed as to the Callaghans and their tenants, and judgment of dismissal was entered. The action proceeded as to certain other defendants, exclusive of the Callaghans and their tenants, and in 1874 judgment was rendered in favor of plaintiff and. against certain defendants, including Gorham. In 1877, a writ of possession was issued commanding the Sheriff to put plaintiff in possession of the tract of land described in the complaint. One Porter, claiming to be the successor in interest of plaintiff, required the Sheriff to execute the writ by placing him in possession of the undivided [614]one fourth of the tract of twenty-nine acres. The order of the Court helow, staying the execution of the writ as to the Callaghans and their tenants, and the tract in their possession, is the order appealed from.

The order is correct. The Callaghans, by themselves and their tenants, were in the exclusive possession of the land at the time of the commencement of the suit. They were made parties defendant in that suit, which was subsequently dismissed as to them. They, therefore, have not had their day in Court, and they are not affected by the judgment after-wards obtained by plaintiff against other persons.