Cadwallader v. Harris

• Decision Date: 31 January 1875
• Citation: 1875 WL 8213,76 Ill. 370
• Parties: SIMEON CADWALLADERv.FRANKLIN HARRIS.
• Court: Illinois Supreme Court

76 Ill. 370

1875 WL 8213 (Ill.)

SIMEON CADWALLADER

v.FRANKLIN HARRIS.

Supreme Court of Illinois.

January Term, 1875.

APPEAL from the Circuit Court of Adams county; the Hon. JOSEPH SIBLEY, Judge, presiding.

Messrs. SKINNER & MARSH, for the appellant.

Messrs. WHEAT & MARCY, for the appellee.

Mr. JUSTICE MCALLISTER delivered the opinion of the Court:

This was an action of ejectment, brought in the Adams circuit court, by appellee, Harris, against appellant, Cadwallader, to recover the lands in question. The plaintiff had judgment, to reverse which this appeal is prosecuted.

It is not contended that plaintiff's evidence failed to make out a prima facie case; but the question is raised in this court that he was concluded by the judgment of the United States Circuit Court for the Southern District of Illinois, rendered at the June term thereof, 1867, in favor of one Kibbie, against Sturtevant, the latter being in possession as vendee of Harris under an executory contract of sale of the lands in question, but only a portion of the purchase money having been paid.

There is nothing in the record tending to show that the strict relation of landlord and tenant existed between Harris and Sturtevant at the time the suit against the latter was brought in the Federal Court by Kibbie, or during its pendency. Counsel rely upon a virtual relation of that nature arising by implication of law, and, in argument for appellant, they assume that notice of the pendency of the suit against Sturtevant was given to Harris, wherefore they say he is concluded by the judgment. It is not pretended that Harris was brought or came in to defend the suit against Sturtevant, so as to become a party to the record.

His title was so connected to and consistent with the possession of Sturtevant, the occupant, that he might properly have been let in to defend in that action. Williams v. Brunton, 3 Gilm. 600. But he was not, and the question is, whether, the relation of vendor and vendee existing under an unperformed contract of sale and purchase, the vendor, under the circumstances of this case, is concluded by the judgment against the vendee. It is insisted, on behalf of appellant, that he is; but this result is predicated upon the fact of notice or knowledge of the pendency of the suit against the vendee.

Upon that question there was a contrariety of testimony, and it was for the court below, sitting in the place of a jury, to determine with which party was the weight of the evidence. The court having found for the plaintiff, then, if the fact of notice was material, the presumption would be indulged that the finding was against the alleged notice. But was it material, or, in other words, would Harris be concluded by the judgment against his vendee, to which he was not a party, even if notice had been shown by positive, uncontroverted evidence? By the common law, a judgment in ejectment was not conclusive upon the title of either of the parties to the record; but an innovation has been made, by statute, upon this rule of the common law. By the 29th section of our original Ejectment act, it is provided: “Every judgment in the action of ejectment rendered upon a verdict, shall be conclusive as to the title established in such action upon the party against whom the same is rendered, and against all persons claiming from, through or under such party, by title accruing after the commencement of such action.”

The only other provision as to the effect of the judgment, contained in the statute, is in the 31st section, which gives the same identical effect, after two years, to a judgment by default.

No proposition could be plainer than that Harris, the vendor, did not claim from, through or under Sturtevant, his vendee, by any title accruing either before or after the commencement of Kibbie's action against Sturtevant. If, therefore, the judgment against the latter can be held conclusive upon Harris, it must be upon the ground that he was in some way, theoretically or constructively, a party against...