Monongahela Valley Camp Meeting Ass'n v. Patterson ( 1880 )

Mr. Justice Trunkey

delivered the opinion of the court, November 22d 1880.

The sheriff returned the habere facias possessionem as follows: “ I do hereby certify and return that, as against all the defendants named in the within writ, possession was delivered, but I found in occupancy and possession of said premises a person who did not claim or hold possession under the defendants or any of them, but claimed to hold, and I believe did and does hold, by a paramount title, for and as the Monongahela Yalley Camp Meeting Association, and who refused to deliver up possession of said premises.” To the plaintiff’s petition for an order upon the sheriff to execute said writ, the sheriff formally answered, stating among other things that after investigation he believes the title of said company is good as against Patterson,.that the court has no power to make an order that he execute the writ, and omitting to mention whether he asked indemnity of the plaintiff or if it was refused. He was not persuaded that the company was in possession anteriorto the commencement of the action, at least he does not say so. But it was his right to have a decision of the court before turning out the intruder, and the form of his proceeding to obtain it is immaterial. “ When there is any doubt as to how or by what claim of right a person intrudes upon land, the sheriff cannot be compelled without the direction of the court to remove such person, and in all such cases of doubt the officer should, before removing the party, require that the plaintiff first apply to the court, on notice to such person, for an order directing the sheriff to remove himCrocker on Sheriffs, sect. 575; Herman on Ex., sect. 351.

The company answered, claiming that it was incorporated in October 1876, that possession was delivered to it in July 1876, under and in pursuance of a written proposition to lease which it accepted, and that it has held possession ever since; it also claims a good and valid title and right of possession directly derived from Patterson. Its claims are nearly identical with the grounds of defence set forth in the defendants’ abstracts of title and which they advanced at the trial. When the suit was commenced there was no such artificial person as this association — it was contemplated. Natural persons had possession, were served with process, made defence, and verdict and judgment were rendered against them. Not one disclaimed possession. They were the persons W'ho negotiated with and obtained possession from the plaintiff, and if they did not hand it over to the corporation it is an intruder. Whatever title and possession the association has it got through the agency of the defendants, and it is clear that when the suit was brought, as well as when the possession was delivered and taken, the corporation was not in existence. When the association says it took possession in July, it means, of course, that the defendants took possession, who subsequently, perhaps with others, became incorporated. That it did not come into possession by collusion with defendants, doubtless, is literally true, and the presumption is strong that it took from the defendants with actual knowledge of the pending ejectment.

The learned counsel for the sheriff and association cite Clark v. Parkinson, 10 Allen 133, as ruling this case against the plaintiff. There the party claiming paramount title was in possession anterior to the suit, and the plaintiff did not make him a defendant; it was held that neither his title nor right of possession had been adjudicated in the case the plaintiff had chosen to present. Referenee is also made to Raw v. Stevenson, 24 Pitts. L. J. 145, a case where Raw, by due legal proceedings, while the ejectment was pending, without connivance'or consent of the defendant, obtained possession, and claimed by title hostile to both the plaintiffs and defendants in the ejectment. It was said that had he got into possession, by any trick or abuse of legal process, he ought to be treated as an intruder. Moreover, the conduct of the plaintiff in procuring the judgment, which was the foundation of his sheriff’s deed, so clouded his title that it was evidently considered of no validity as against Raw.

Here, it was utterly impossible for the plaintiff to sue the party, now claiming title, at the date he commenced suit. This party was not added, and the writ served on it by the sheriff, which was his statutory duty had it been in possession, for a person not in being cannot be possessed of land. The claimant was brought forth after the action was begun, and acquired its possession from the defendants. We are of opinion that the learned judge of the Common Pleas was clearly right in his conclusion.

Under the circumstances, we deemed it better to consider the alleged error; but whether these parties were entitled to writs of error is not decided.

The order, dated April 3d 1880, is affirmed.