Merritt v. Eagan

59 Ill. 212

• Court: Illinois Supreme Court
• Decided: June 15, 1871
• Status: Published

Opinion

Per Curiam:

The evidence shows, that appellee was a silent partner of Hunger, and was interested in the claim out of which an action of replevin originated, in which Hunger was plaintiff and Dodd and Sutton were defendants, and which was dismissed, and a judgment retorno habendo was rendered against Hunger. Appellee also purchased of Hunger his interest in the property whilst the replevin suit was pending. And the property was seized by the sheriff and his posse by virtue of a writ issued under the judgment of retorno habendo. Appellee is estopped to claim the property as against this writ, as the partner of Hunger, and as his vendee before its return was adjudged. In either relation he was a privy to the judgment, and is estopped from denying appellants’ right to execute the writ. Hunger could not have recovered for trespass in executing the writ, and appellee, from his relation to the transaction, can have no higher or better right than Hunger had, unless it should be simply for entering his premises, as he was not named in the writ, but such an entry could not entitle him to more than nominal damages, unless more force and violence were used than was necessary. See Lear v. Montross, 50 Ill. 507.

Appellee could not show title in himself, so as to render the return of the property under the writ, a trespass. His partner and vendor having obtained the property by replevin, and on the dismissal of the suit a judgment for the return of the property having been rendered against him, he, or his privies, could not resist or evade its return, by claiming to own the property. After its return he might, no doubt, assert title, as though, no judgment had ever been rendered. Or, even before a return, he might have instituted proceedings at law for the purpose of establishing his ownership. But he must submit to have the writ executed, and can not treat the officer as a trespasser, simply because he executes the writ, by restoring the property to the person to whom the court had adjudged it should be returned. But if the officer breaks and enters the close of the person who is the owner of the property, and against whom there is no writ, then the officer is liable for that act as a trespass. The jury, in this case, rendered a verdict for the full value of the property returned, and in this there was error, as there was no trespass in taking it under the writ. The judgment of the court below is reversed and the cause remanded.

Judgment reversed.