Moulton v. McDermott

Foote, C. The appeal taken herein is from an order perpetually restraining the sheriff from executing a writ of possession issuing under a judgment in ejectment.

The action was for the purpose of recovering possession of certain premises from Mary Ann McDermott and certain defendants. Judgment was given in favor of the plaintiff, but when the writ of possession involved here was issued, the defendant in the action was dead, and Fanny McElhinny, who was not a party to the original action in ejectment, was in possession, by her tenant, of the premises, and upon her application the court below enjoined the sheriff from interfering with her under the writ.

The plaintiff in the action above alluded to contends that Mrs. McElhinny was so connected with the original action, although not a formal party thereto, that she ought to be held concluded by the judgment therein rendered, and therefore subject to be removed from possession of the premises under the present writ of possession.

The defendant, Mrs. McDermott, set up, in her answer in the original suit, that she was the tenant in possession of John McElhinny, the husband of the party now in possession, Mrs. McElhinny, who now claims to be the owner of the property in dispute, and seised in fee thereof, and that her grantor was one John McElhinny.

The plaintiff failed to show any title in herself, as declared by the court, but under the instructions of that tribunal, the jury returned a verdict for the plaintiff, because of the fact that Mrs. McDermott, the defendant, having entered under the plaintiff as tenant, was es-[662]topped to deny the plaintiff’s title, under whose license the defendant entered.

In the same connection the court charged that if this question of estoppel was out of the way, the plaintiff’s title would be of no avail as against the right or title of Mrs. McElhinny, under whom also the defendant claimed.

So, in effect, the case went off on the question of estoppel, and did not determine anything adverse to the right of possession of Mrs. McElhinny, the party in whose favor the court below made its restraining order. In other words, Mrs. McElhinny, although endeavoring to have the defendant prevail, as her tenant, under a title superior to that of the plaintiff, did not have the advantage of this superior right or title, because the jury, under the instructions of the court, were bound to find that Mrs. McDermott had entered under the plaintiff, and was estopped to defend her possession under the superior right of Mrs. McElhinny.