Wallace v. Hall

22 Kan. 271

• Court: Supreme Court of Kansas
• Decided: January 15, 1879
• Status: Published

Opinion

The opinion of the court was delivered by

Valentine, J.:

The decision and judgment in this action were rendered in the court below solely upon an agreed statement of facts, which shows in substance as follows: In 1877, Eliza Hall owned a certain piece of land, and on March 1, 1877, leased the same to one McGuire for a period of one year. McGuire took immediate possession of the premises. At the same time George F. Johnson had a warranty deed for the premises from Dubois & Co., and they a warranty deed from Riley, and Riley a quitclaim deed from Ocheltree,. and Ocheltree a tax deed from the county clerk, which tax deed was void upon its face. The plaintiff, James M. Wallace, afterward became the lessee of Johnson, as follows: “On the 24th of February, 1878, the plaintiff obtained a written lease of those premises, including the dwelling-house-thereon, from said Johnson, and on that day demanded possession of said premises of said McGuire, who was then the-tenant of Hall, in the name of Johnson and as the lessee of Johnson; and that McGuire then permitted the plaintiff to enter the premises with his household goods and stock, without the knowledge, authority or consent of Eliza Hall (or her agent), who was then and is now a resident of the state-of Missouri.” None of the parties claiming under said tax deed, except Wallace, ever had actual possession of said premises. When McGuire’s lease expired, he refused to leave the premises, and Mrs. Hall then commenced an action of forcible detainer against him before a justice of the peace to oust him from the premises. On the day before the trial, however, McGuire left the premises, but still Mrs. Hall prosecuted the action to a final termination, recovering; a judgment therein against McGuire “for the immediate possession and restitution of the premises.” The justice then> issued a writ of restitution against McGuire, and delivered the same to George W. Hamilton, a constable, for execution. “In pursuance of said writ, Hamilton, as such constable,, went to the premises aforesaid with a posse for the enforcement of said writ and judgment, and found the said plaintiff herein (Wallace) in the house with his goods and his stock on the land; and also found some of McGuire’s goods in the house — the said house being on the land and being the same house that Mrs. Hall had previously leased to McGuire, and put him in possession of under the lease. But the said McGuire was not then found therein or thereon, he having' vacated the house the day before the trial aforesaid; that said constable ordered and commanded the plaintiff to leave the house and premises forthwith with his property, which the plaintiff then and there refused to do, at the same time claiming to be the tenant of the said George F. Johnson, who claimed to be the owner of the premises; whereupon the said constable proceeded, with the aid of the husband (and son) and agent of said Eliza Hall, to forcibly eject and did so eject the person and property of the plaintiff from said premises, against the protest and remonstrance of the plaintiff; and the said constable and persons aforesaid removed the said plaintiff’s goods, chattels (stock) and personalty in a wagon some nine miles distant to Shawneetown, in said county, and put the goods under shelter.” The plaintiff Wallace was not a party to said action of Hall against McGuire, nor a party to the judgment, nor to the writ of restitution. The writ was against McGuire alone.

We have quoted literally everything found in the agreed statement of facts which would tend to show whether Wallace held his possession of said premises under Hall or McGuire, or adverse to them. It must be remembered that Wallace is the plaintiff in the present action, and Hall and Hamilton are the defendants, and the action is for damages suffered by being ousted from said premises. Hence it will be perceived that the question of how Wallace held the possession of said premises is an important question in the case. The parties in this case, .in submitting their agreed statement óf facts to the court below, agreed in writing; and also submitted this agreement to the court below, that the only question to be decided by the court below was as follows: “Hid the defendants herein [Hall and Hamilton] possess the legal authority, under the said writ of restitution issued on said judgment, to dispossess and eject the plaintiff [Wallace], at the time, in the manner they did eject him and his property from said land and tenements?” And the parties further agreed in writing, that if the court should decide said question in the negative, then it should render judgment in favor of the plaintiff and against the defendants for $25 and costs; but that if the court should decide said question in the affirmative, then that it should render judgment in favor of defendants and against plaintiff for costs. The court decided said question in the affirmative, (the case-made erroneously uses the word “negative,”) and rendered judgment accordingly. And this judgment the plaintiff now seeks to have reversed by this petition in error.

We think tlie court below erred in its decision; for while a constable holding a writ of restitution in an action of forcible detainer generally has a right to remove from the premises the defendant in the writ and his property, and all persons holding under him and their property, yet such constable has no right to remove therefrom a stranger to the writ who does not hold under the defendant in the writ, but holds in good faith by some independent claim. See authorities cited by counsel for plaintiff in error, including Mitchell v. Woods, 17 Kas. 26. Of course, if such stranger should in fact hold under the defendant in the writ, he could not set up some false or sham claim for the purpose of preventing the execution of the writ against him. It does not appear in this action that Wallace held under Hall or McGuire. On the contrary, it appears that he held adversely to them. Nor does it appear that his claim was not in good faith, or that it was false or a sham.

The judgment of the court below will be reversed, and cause remanded with the order that judgment be rendered in favor of the plaintiff and against the defendants for $25 and .costs.

All the Justices concurring.