Sutor v. Miles , 2 B. Mon. 489 ( 1841 )

CniEF Justice Bobertson

delivered the Opinion of the Court.

In 1836, Sutor's administratrix sued Charles Miles for damages for,an alledged breach,of his covenant warranting the title to a slave, Ambrose, sold by him to the intestate in October, 1822, and which slave was one of those embraced in the suit in Chancery by Wm. Fenwick vs Alex. Macey and L. B. Fenwick, instituted in Juné, 1822, and finally decided in the complainant’s favor in 1835, as fully explained in the reported cases of Fenwick vs Macey et al. (1 Dana, 276;) Fenwick's administrator vs L. W. Macey, (9 Ib. 198;) and the same vs the same, (2 Ben. Monroe, 469.)

The ground of the action was'the decree in the case of Fenwick vs Macey ct al., establishing the right of William Femoick, dec’d. to the said slave, Ambrose.

The administratrix having obtained a verdict for $,T975, a new trial was granted to Miles, to which she excepted— and on the next trial, verdict and judgment were rendered in bar of her action.

The first question for revision is,- whether the Circuit Judge erred in setting aside the fust veidict. And it seems to us that he did not err in granting to Miles a new trial.

One who takes the'possessionof tioiisiyf which is theC°party’ who proves successful m the eontroversy, is not eshisPiight tcfüie kenP<byranySdecisión in the

On the first trial Wm. Fenwick’s title to Ambrose was indisputably established, and there was not even the semblance of proof that Miles ever had any title. He proved only that, in December, 1821, he bought Ambrose under a. ft. fa. against Lewis B. Fenwick, but he did not attempt to prove that Lewis had any title.

But the proof was uncontradicted and conclusive that Wm. Fenwick was in the adverse possession of Ambrose when sold under the ft. fa. and was actually in possession when Miles took him away and sold him to Sutor, in October, 1822, during the pendency of the suit of Fenwick vs Maceij et al. And it also appeared that Sutor had retained the possession, as in his own right, from the date of his purchase, for more than ten years.

Now, if it be admitted that Miles failed, on the first trial, to show that he had acquired any title to Ambrose, and that he was guilty, therefore, of a sheer trespass in taking him from Wm. Fenwick,pendente lite, still, as the said William was the complainant in that pending suit \ 1 • ° ’ and, according to all the evidence on the first trial, Lewis B. Fenwick, who was a defendant, had no possession, ®na^- decree did not conclude or affect Miles. For surely the doctrine of lis pendens cannot be extended so fai as to embrace a stranger who had tortiously intruded on the successful party during the pendency of the suit, and deprived him of the possession of property, for establishing his title to which, against the parties to the suit, it was prosecuted by him without making that trespasser upon him a party. In such a case the cause of action which accrued at the date of the eviction was not suspended by the lis pendens; and, therefore, Sutor acquired the legal right of property by his adversary possession of Ambrose for more than five years without disturbance or question. And, of course, his administratrix was entitled to recover on the first trial, no more than nominal damages, on the ground that his vendor had no title. The verdict, therefore, according to any allowable deduction from the proof on the first trial, exceeded the legal measure of damages to which the plaintiff in the action was entitled, and consequently was, on that ground alone, rightly set aside.

In such case the cause of action wasnotsuspended by the Us fen-dens, and property thus taken, after 5 years adverse holding, cannot be recovered. A purchaser from one of two persons who afterwards have a controversy involving the title to the property purchased, is not concludcdby any decisionbetween such persons.

On the last trial Lewis B. Fenwick, who was examined as a witness for Miles, without objection, testified that he, and not Wm. Fenwick his father, was the owner of Ambrose when he was sold under the execution against himself, and bought as his slave by Miles; that Miles paid to the sheriff $650 in notes of the Bank of the Commonwealth, which was the amount bid by him at the sale under the execution, and forthwith received from that officer a bill of sale for Ambrose, but did not then disturb the possession of Wm. Fenwick, who was holding under his (Lewis’) title, and consented to the sale under execution; and that Miles, shortly afterwards, agreed that the witness might, within a prescribed time, “redeem” Ambrose, but that he was not able to do so, and, therefore, Miles made the subsequent sale to Suior, and took Ambrose out of the possession of Wm. Fenwick, without objection, so far as the witness knew or had ever heard.

There was no opposing testimony.

Upon these facts it seems to us that the jury was authorized to conclude that Miles had a good title when he sold Ambrose to Suior, and that, therefore, there had been no breach of his warranty.

If, as the jury had a right to infer, Lewis B. Fenwick owned Ambrose at the date of the sale under execution, and Miles purchased his title absolutely, before the commencement of Wm. Fenwick’s suit against Macey and the said Lewis, then Miles was not a pendente lile,purchaser, and his title was not concluded by the decree rendered in the case of Wm. Fenwick vs Macey et al. as has been already adjudged on the like facts in the case of Fenwick’s administrator vs L. ¥/. Macey, recently decided by this Court and already referred to in this opinion.

We cannot, therefore, set aside the last verdict for want of either evidence or law to sustain it. And, if we are right in the foregoing view of the case, it is evident that nothing occurred in the giving or refusing of instructions, which, can be deemed essentially or injuriously erroneous.

Dec. 25, 1841. & Todd and TI. Marshall for plaintiff; Pirtle and Wheatleij for defendant.

It is, therefore, considered that the judgment now sought to be reversed be affirmed.