Bodley v. Hord , 23 Ky. 321 ( 1828 )

Judge Mills

delivered the opinion of the court.

This is an ejectment, and was heretofore brought to this court, and decided, and the report of the case will be found in 5 Litt. Rep. 88. On the return of the cause to the court below, Hord succeeded in obtaining a judgment for all the land in dispute, and Bodly obtained the appointment of commissioners to value improvements. This took place at the Novembor term, 1§24, of the court below.

At the August term, 1825, Hord obtained a rule against Bodley, to shew cause why he had not procured a report from the commissioners, and why, On account of the delay, a writ of possession, should not issue.

Order of the circuit court for writ of possession. Cause shewn against the rule.. if the unsuccessful defendant in ejectment, after having commissioners appointed under the occupant laws, fail to cause them to act and report, the plaintiff may, after the proper rule, have an order for the writ of possession. Agreement between the parties relied on against the rule, and motion for the writ of habere facias possesssionem, held under the circumstances of the case, inapplicable, and not sufficient cause against the rule.

At thé November term, 1825, this rule was heard, and a writ of possession was ordered. The only -cause shown by Bodley, why he had not proceeded With the commissioners to obtain the valuation of -improvements, was, that there was a chancery suit ■depending between the parties for the same land, and an interlocutory decree was rendered therein, ¡at the said November term, 1825.

In that chancery suit, an agreement had been entered into, and signed by the parties, in which, among other things, touching the preparation of the suit, the following clause was inserted: “And it is further agreed between the parties, that all other suits depending between the parties, or upon the claims under wliich they hold, so far as their claims interfere, shall await the final decision of this suit.” This agreement was signed and sealed, and remained on file in the chancery suit. The land here in controversy was the same controverted in equity. The court below nevertheless ordered execution to issue, and Bodley, to that order, has prosecuted this writ •of ¡error.

It was certainly proper to take the method -resorted to by Hord, for the purpose of bringing the claim for improvements to a close. He could not be bound to lie by forever under the claim for improvements, without its being brought to an issue, and without any remedy to hasten his adversary; and the mode he pursued was a proper one. The claim set up by Bodley for improvements was, in the nature of a suit, and as all other suits may be dismissed when the plaintiff will not proceed to trial or prepare for it; so may this claim.. Hord, on this occasion, waited about nine months upon Bodley, and in that time no step was taken to value improvements. He was, therefore, justifiable in attacking the order.

The question then remains, was the written agreement shewn by Bodley, sufficient to excuse his delay and neglect to execute the order? We conceive not. That agreement was not an entry on record, nor was it made to operate as an injunction. To give it even that effect in a court of equity, it would have to be set up by bill, or proper allegations, and an injunction be obtained thereon, in usual terms. It was, therefore, not competent to barely produce this writing in answer to a motion, in one of the common law suits referred to therein, and there to ask that it might operate as an injunction, and stay-all proceedings. Such an agreement is contestible, and may be set aside, and to give it specific performance on motion, would give itanincontestible effect. The most that could be made of it would he a continuance, lest lie should be surprised. But the instrument is not produced for that purpose. Moreover, if the agreement could have had such an affect once, it had been violated without controversy, and' Bodley had acquiesced in the violation. The parties had progressed in this ejectment without seeming to suppose that it was affected by the agreement till the judgment was obtained which terminated the suit for the land, and there was properly no suit depending about the land. That was ended, and the claim of Bodley- for improvements was a new claim, resulting from the determination of the first suit, and one to which the spirit of the agreement did not apply to delay it. The operation of the agreement upon the ejectment might have been effectual before judgment, and the parties not having so applied it, raises a presumption that it was done away, or did not apply; and as the judgment is obtained, it could not still be made use of to protract the controversy for improvements by keeping the order appointing commissioners always existing, and yet never to he executed till the chancery suit was ended.

Judgment affirmed. Crittenden and Bledsoe for plaintiff; Triplett for defendant.

The judgment is affirmed, with costs.