Paramore v. Persons , 57 Ga. 473 ( 1876 )

Bleckley, Judge.

1, This bill bad but a single object, which was to enjoin the defendant from entering into possession of the land, and dispossessing the complainants. The specific act apprehended and sought to be prevented, was, calling in the marshal of the United States to deliver possession of the premises, in consequence of a sale thereof made by him, officially, under a judgment of the circuit court of the United States against a third person, at which sale the defendant in the present bilí was the purchaser. The complainants admit that they held the land under the defendant in that judgment, and that the deed from him to them was executed after the judgment was rendered; but they allege various facts amounting, in substance, to a parol purchase of the land several years anterior to the judgment, with payment of the purchase money in full, and simultaneous entry into possession under that purchase, which possession has been, in their own right, adverse, and continuous ever since. The deed was made on no new bargain or consideration, but as the result of these antecedent facts, and to clothe the complainants with full indicia of title. Not only did the complainants hold possession of the land at the time the judgment was rendered against their vendor, but the purchase money having been all paid, their possession was rightfully their own. As against him, they were the real equitable owners. They could have maintained a bill to compel him to make the conveyance which be afterwards made voluntarily. That being so, the deed is to be treated as lending support to their prior equity and adverse possession, and not as overthrowing the same: 20 Georgia Reports, 120; Sterling vs. Arnold, 54 Ibid., 690; Gwinn vs. Smith, 55 Ibid., 145; Morgan vs. Taylor, 55 Ibid., 24. The complainants did not lose the equitable title which they had before and at the time of the judgment, by afterwards accepting the formal legal title. Their equitable title, with the adverse possession attending it, being older than the judgment, was sufficient to prevent a summary dispossession by the officer: Code, section 3651; 3 Kelly, 207; 6 Georgia Reports, 423; 23 Ibid., 318; 44 Ibid., 266; 45 Ibid., 201 ; 52 Ibid., 630. To hold this, it need not be assumed that, on the trial of the title in court, it would prevail over that acquired at the marshal’s sale. If the judgment under which the sale took place was founded on a debt contracted upon the faith of this property before the equitable title originated, that circumstance might so aid the creditor’s lien that it would pass a complete title to the purchaser at the official sale, in consequence of the rule that what the creditor has a right to sell the purchaser has a right to buy: See 54 Georgia Reports, 543. But the officer, on a mere question of displacing an occupant who held possession in his own right at the date of the judgment, claiming as purchaser, with the purchase money paid, could not enter into a comparison of titles and determine their relative superiority. It would be enough for him that the adverse claim and possession were of longer standing than the judgment.

2. The weight of decisions by this court is against interfering by injunction to restrain a mere trespass: 5 Georgia Reports, 580; 8 Ibid., 119; 11 Ibid., 294; 10 Ibid., 576; 32 Ibid., 241; 22 Ibid., 165; 40 Ibid., 293. See Code, section 3219.

3. The marshal’s power in the matter of putting purchasers in possession is only a counterpart of that which a sheriff has in like cases: Revised Statutes United States, section 788. For him to remove the complainants, or for the defendant to enter under him, would be a trespass. It is not alleged in the bill that the marshal intends to run over or disregard the complainants’ title. Indeed, it does not appear that the facts of their title and possession have ever been brought to his notice. The presumption is, that were he fully informed thereof, he would decline to molest the complainants. Assuming that what the bill avers as to the preparations for farming on the land, and as to the irreparable nature of the injury which would result from interfering with their operations as farmers, would give the complainants a claim upon the remedy of injunction stronger than is presented in an ordinary case of trespass, still, to complete their right to such a remedy, they should at least show that they have done all that they ought to do in acquainting the marshal with the facts of their case, and that, nevertheless, their possession is threatened or in peril. It is questionable, even then, if an injunction from a state court could prevent a purchaser from entering under the marshal. Delivery of possession in consummation of an official sale under final process, is a final step in the execution of such process. Certainly, the marshal, himself, could not be enjoined at that stage any more than at a prior one. And it is not clear that a purchaser could be enjoined from receiving possession at the hands of the marshal, any more than he could be enjoined from accepting a deed or making a bid. As we rule that the bill was without equity and ought to have been dismissed at the hearing, on the motion which was made and overruled, it is unnecessary to consider any other question found in the record.

Judgment reversed