Winters v. Helm ( 1867 )

Opinion by

Beatty, C. J., Lewis, J.,

concurring.

In this case, which was for the foreclosure of a mortgage, a sale of a two-fifths interest in a certain toll-road was'ordered. Martha A. Bedford, wife of Thomas J. Bedford, became the purchaser of that interest. After purchase, she and her husband applied to the Court for an order to be put. in possession of the road. The Court ordered a rule to be served on the defendants and all persons claiming under them, requiring the road to be by them given into the possession of Bedford and wife, or else that they should, on a certain day, show cause why a writ of assistance should not be issued to place them in possession. Thomas J. Bedford, one Gris-wold (a person in his employ) and Joseph I. Hatch, who had been appointed' elisor in this case, went with a copy of this rule to the toll-house, where they found one Winn in possession of the house and receiving tolls. The rule was served on Winn, and after such service he asked advice of the elisor as to what he should do. The elisor told him it might be a contempt of Court not to deliver up possession, but he did not know; he must decide for himself. Winn then asked the elisor to keep the toll-house and collect the tolls, whilst he went to town to inquire what it was his duty to do. This the elisor declined to do. He then asked Bedford if he would collect the tolls whilst he went to town to inquire what he must do. Bedford consented. ■ Winn went to town, and was informed that it was not his duty, under such a rule, to deliver possession. He then went back and sought to regain possession; but Bedford refused to surrender, and he and his man Griswold kept possession of the front room of the toll-house, and continued to collect the tolls. In the meantime, whilst Bedford was in possession, the Court set aside and annulled the rule or order which had been made on the application of the Bedfords. When this was done, Bedford was notified of the fact, and again requested to surrender the possession. This he refused to do. The Lake Bigler Road Company, claiming to be a corporation, by its attorneys, then moved the Court to be restored to the possession of the property of which Bedford had got possession, as before stated. Their application was based on an affidavit made by Winn, who was in possession at the time Bedford got in.

On the hearing of this motion, the Court below ordered the possession to be returned to the Lake Bigler Road Company. Erom this order, Bedford and wife appeal. Many objections are urged to the action of the Court below. One is, that Bedford did not get possession of the road by means of the rule of Court served on Winn, but that the possession was voluntarily surrendered to him. That Bedford, being placed quietly in possession of property in which he claims an interest, cannot be turned out upon summary process without a regular action against him. Another objection is, that the Lake Bigler Road Company did not show that it was a corporation, or in fact that there was any such company in existence ; that it did not show that Winn was its agent, or that it had any possession or any right to the possession of the road.

On the first point, we think the evidence that a fraudulent use was made of the process of the Court to obtain possession of the toll-house is perfectly conclusive. The elisor, instead of going to the defendants in the suit, who are the parties primarily mentioned, goes to the toll-keeper, wffio could not be supposed to know anything about legal matters connected with the road, to serve the rule. He is accompanied not only by Bedford, but by a third party in his employ to make the array more formidable. Then he is told “ that it might be a contempt of Court not to deliver up possession.” These are certainly very strong circumstances showing a preconcerted design to impose upon and frighten the toll-keeper out of possession. But this is not all. Bedford is asked if he will not collect the tolls whilst Winn goes to inquire what he must do. He says that he will. Such acceptance of the possession by Bedford certainly created, on his part, an implied promise to redeliver the possession to Winn if he concluded, after asking advice, that it was not his duty to surrender the possession. If Bedford intended when he took possession not to comply with this implied promise, it was a palpable fraud. If he did not so intend at the time, but afterwards conceived the idea of retaining the possession, then the execution of that afterthought was equally a fraud. We cannot see that it would make much difference in this case whether the possession was fraudulently obtained or only fraudulently retained. It is apparent enough that Bedford was in possession at the time this order was made, and that possession was the joint result of his fraud and the improper use of the process of the Court. That being the case, it was the duty of the Court to remove him with all convenient promptitude.

As to the other objection, it is true the Lake Bigler Road Company hardly made any showing as to its own existence. But there are two facts which do appear in relation to this company: First— There is a deed introduced which purports to convey this road or certain interests therein to the Lake Bigler Road Company. Second — Winn, who was the party actually deprived of the possession, makes the affidavit to the petition praying for the order against Bedford to return the possession to that company. One thing is certain: whoever was entitled to possession of this road, Bedford was not. Of course, by this we do not mean to express any opinion about- his legitimate rights, but only that it was not right for the Court to allow him to obtain any advantage from the abuse of the rule made by the Court.

Bedford then having no right to retain possession under the circumstances, the Court, if it was not satisfied as to the showing of the Lake Bigler Road Company, might with propriety have ordered the possession back into the hands of Winn. But Winn himself had made the affidavit to the petition, and we cannot see that the Court under such circumstances did wrong in making the order in the form in which we find it.

Bedford is not in any legal sense injured by the order. He has no right to complain that the Court has deprived him of any benefit he may have expected to derive from an abuse of its process.

A number of questions in regard to loractice and other matters are raised in this case which we do not deem it necessary to decide: for, whether we consider the case as standing on the affidavits or on the affidavits and oral testimony introduced in aid thereof— whether we take the case as shown by the finding of facts by the Judge who heard the motion or as shown by appellant’s statement on appeal — we arrive at the same conclusion. The process of the Court having been improperly used by Bedford to obtain possession, he has no right to complain of being turned out by a summary order. If the order placing the Lake Bigler Road Company in possession was an improvident one' (and as to that we express no opinion) some other person has been injured — not the Bedfords. Judgment of the Court below is affirmed.

■ Johnson, J., being interested in the event of this suit, does not participate in this decision.