The clarion., 1885-02-04

county, 1st DlelTlCt. W. =. edtuer-
ston, Judge.
4drerse possession ofUeadee as against
vendor. Forcjble ERECTION as qainett for
recorery in gectmeHt
COOPER, J.:
In 1870 Able purchased, by parol,
from 5 Wilkie certain land in CotfeeyiIle.
The price agreed upon was $3.50, payable
in three installments of Sl50 each. on the
first day of January in 1871, 1872, and
1873 respectively. On the payment of
the last installment Able was to receive
conveyance of the land He went
into possession, and made the first pay
ment. Soon afterwards WiIkie died
and Able made another payment tC the
administrator. This administrator then
died, aud an administrator de bonis non
was appointed, who declared the estate
of Wilkie insolyent and sold this land
which had been purchased by Able for
the payment OF the debts of the estate 1t
was purchased at the administrators
sale by Moring who obtained writ of
assistance and forcibly ousted Able. This
writ of assistance was nullity, so far
as Able was concerned, he not being a
party to the proceeding. Able then in
stituted his action of ejectment to re-
cover possession of the property. The
case was tried by the court, jury being
waived, and found in favor Of Able.
Two questions are presented. Had
the plaintiff prior to his eviction, ac-
quired title by adverse possession? If
not, and the defendant is the real owner,
may the plaintiff nevertheless recover,
because of the forcible entry of the de-
fendant?
Under these circumstances, it is well
settled by an almost UnbrOken current
of authorities that the plaintiff had not
acquired title by adverse possession. In
such cases, until the purcha>e-money is
paid, Tor what is perhaps equivalent
thereto, all right of action to recover
it by suit is barred by limitation the
possession of the vendee is not adverse
to the title of the vendor, but is, by the
contract under which the vendee enters,
in subservience to and recognition of it.
Where, however, the vendee has exc
cuted his part of the agreement by pay
ment of the purchase-monc his posses
sion becomes adverse. If il be admitted
thatlcoilection of the purchase-money by
suit was barred by Limitation in January,
1876, three years after the maturity of the
of the plaintiff then became adverse, it
will avail him nothing, since he did not
remain in possession ten years, the stat
utory period.
Upon no matter that has fallen under
our investigation is there greater con-
fiict of authorities than upon the ques-
ton of the rights and remedies of aa &C
cupant who has been forcibly evicted by
q, bo tal ~. 70
make peaceable entry. The courts in
America occupy radically different posi-
tions on it, and there is no little con
fict of judicial expression in England.
| In respect to appellee's claim for dam
ages for the forcible entry and eviction,
the conclusion is reached, after care
examination of the authorities, that he
cannot succeed, but that he is entitled
to succeed as to his claim for damages
| done to his furniture, which the appel
liant could only Justify by a lawful pos
| ses-on.
| The courts of Vermont and Illinois
appear to stand alone in holding that a
tenant who continues unlawfully in pos
session can as against the owner who has
made a forcible entry recover damages in
an action of tresspass Qudre cidusum, or the
| possession OF lHe pTeHtstS Dy tJtcC-
ment Aside from the decided weight
of authority by which the opposite view
is sustained it is especially applicable in
this State, since with US the action of
ejectment is no longer mere possessory
action but is one in which the title is
tried, and judgment IN which would
conclude not only the question of pos
session but also the right of title. We
are therefore of opinion that ejectment
cannot be maintained by the plaintiff, but
that to recover possession of the premi-
ses he must resort to the action of un-
lawful entry aud detainer. Reversed.
Goladay & Lester for appellant.
A. II. Whitfield for appellee.