Washington telegraph., 1847-02-10


Of iafrall, for the use Of Scott, is valid bond.
upon which a suii may be sustained for breach
Of The condition thereof
Watkins Il Curan, for piainliT
Fowler y Pike, IN ffsPria PsfsVaa.
M. Il. Fitzgerald vs. Beebs. Appeal from
the Pulaski circuit court
Judge Oldham delivered the opinion Of the eour,
reversing the Judgment Of the circuit court.
Ia the summary proceeding gwen by the statute
10 the pufehase # real estate, or an improvement
on public lands, 10 obtain possession. the defendant
in the execution, OF olher pefsoa In possession, s
not bound 10 plead specially. but the claimant
should prove the facts which snlille him TO The
possession without any farmal plea denying them
But II the party file written pleas be mus, be held
10 the sifielness Of special pleading.
plea aledging 'ihat the sale waz made with.
out authority Of law" held. lad.
plea, BY lessee in possession, denying that
bic lsssof of landlord "hai Any title, property, OF
estate, whatever, IN the real estate held, bad.
An amended plea beins liled. In the place Of q
former Plea, 10 which demurrer had been sus.
tanned, operates - an Abandonment Of that plea.
aud the questions raised upon 1t by the demurrer.
Plea, alledging that third person, aud not the
d-fendani IN the execution. are the owners Of The
land, and that the person in Possession Is their
tenant and lessee. oiles an imma,eHal issue, and
is bad. The right " the claimant to the order Of
the eoun 10 put him in possession, depends upon
the fact whether the person Ia possession Is tho
defendant In the execution, or bis lessee, and not
whether he Is, OF is not, the lessee Of some other
person The purchaser, N his petition, should spe-
city, with sufficient certainty, The land and pre-.
nlises, or improvement, claimed 10 have heen puf-
chasrd by him, that tho same was sa!d By the
sheriff. or other oGicer authorized BY law 10 sell
the same, under execution, and that he purchased
said real estate, improvement, at said sale. and
had paid the purchase money, aud received the
sherds, OF other officers, deed therefor; that the
defendant in the execution, or bis Lessee, as the
case may be, Is 10 the possession thereof and thai.
the petitioner had demanded possession Of the pre-
misses or given notice TO quit, and that the patty ia
possession had absolutely refused TO deliver pos
session to said purchaser or quit said possession
These syermenis are substantial and material, and
should be proven to the satisfaction Of the court 10
authorize the order to put the Pelilioner IN pos
session.
4 notice, given by order Of the court, after pro.
seniaion Of the petition requiring the party IN pos
session TO appear and show cause why the court
should make the order, Sc, does moi supply tho
want Of demand Of possession and notice to quit
! before filing the petition.
The person 10 possession, having fled one good
plea, denying that he was lessee Of the defendant
Ia the execution, and being held to the strict rules
Of pleading, must be considered as coniessing the
fcs sell forth ia the petition and not denied by the
plea. Under this ssar, any evidence going 10 show
that he was or not, css,o 10 The 4. iendant IN
the execution, was admissible.
A mortgage. from the defendant, TO w. Il s,
executed, acknowledged, aud recorded, bearing
date anterior TO lessee 10 the tenant in possession.
with proof that the mortgage was forfeited, and
possession delivered to w. n s., who entered and
leased, by parol. TO the tenant IN possess on, was
admissible TO show thai he was not tenant 10 tho
defendant in the execution.
The validity Of mortgage Is not effected by
prior Judgment liens upon the morigaged property
The mortgage takes subject 10 such pre- existing
cncnmbfanccs
II W. & :. were entitled 10 possession Of the
premises, and leased 10 +. no cannot be ousted in
the proceeding authorized by the statute, at the
Instance Of purchaser under execution issued
upon judgment against the morgagor older than
lht mortgage, not being the defendant In the exc.
ouion nor his lessee.
After breach Of the condition OF mortgage, by
nen-payment, the title Of the mortgage becomes a
legal title, suthcien, 10 ousi The motgagor, or bic
lessee, holding under ease Of a later date than
the mortgage, by action Of ejecimenL
Surrender Of possession by the mortgueor, and
such lessee, after breach, to the mortgage Is equiv.
alent to actual custer or caution, and determines
the lessees tenancy by paramount title. The title
acquired by lease, is subject to be determined by
prior encumSrances, aud an entry under existing
mortgage determines the relation Of landlord and
tenant created by the lease, md AFTER notice the
lessee becomes liable to the rents and profits accru-
ing subsequently, TO such entry.
IT. after snch entry for breach Of the condition
! af Ill. ..I L..
execution ssged upon Judgment older than the
mortgage, neither the mortgage, nor his lessee.
could be ousted Of the possession by the summary
remedy given by the statute.
Fowler, for appellant
Watkins x Curran, for appellee.