Farnsworth v. Fowler

• Decision Date: 30 September 1851
• Citation: 31 Tenn. 1
• Parties: FARNSWORTH v. FOWLER.
• Court: Tennessee Supreme Court

31 Tenn. 1

FARNSWORTH

v.FOWLER.

Supreme Court of Tennessee.

September Term, 1851.

This was an action for a forcible entry and detainer, tried in the circuit court of Green county, at the June term, 1851, Alexander, judge, presiding, upon an appeal from the judgment of the justices of the peace. There were verdict and judgment for the plaintiff, and the defendant appealed in error. The facts are fully presented in the opinion.

Milligan and Barton, for plaintiff in error. The possession of a house may be severed -- much more may the possession of a farm and the various buildings thereon; and as Farnsworth, by his writ of possession, had been vested with the possession of the house, the writ of injunction could not act retrospectively and make that possession unlawful.

But if the possession was taken in violation of the injunction, none but the court issuing the process can enforce obedience thereto. Eden on Inj. 58, 59.

Patterson, for defendant in error. The writ of possession was not executed before the service of the writ of injunction. Tidd's Pr. 1247; Adams on Eject. 343; 2 Stephens' N. P. 1464.

The writ of possession not having been executed, Fowler, by the service of the writ of injunction upon Farnsworth, was entitled to the immediate restitution of the house. Dan. Ch. Pr. 1818.

Totten, J., delivered the opinion of the court.

The case is an action for a forcible entry and detainer, and, after a trial before the justices, it was taken to the circuit court of Greene, where, at June term, 1851, on a trial de novo, judgment was rendered for Fowler, the plaintiff in the suit, and Farnsworth, one of the defendants, has appealed in error to this court.

It appears that on the 7th June, 1847, in a former suit instituted by Farnsworth against Fowler, for an unlawful detainer, there was judgment for Farnsworth, awarding to him a writ of possession for the same premises--the farm and 150 acres of land. Farnsworth's claim was in fact a mortgage, in the form of an absolute deed, made for the security of money loaned.

On the 26th of June, 1847, Fowler filed his bill in chancery at Greenville, and, upon the grounds of equity assumed therein, prayed for an injunction, which was granted and issued on the same day, enjoining the said Farnsworth, the defendant therein, from taking possession of said premises in any manner, or causing a writ of possession on his said judgment to issue for the same.

Two days thereafter--that is, on the 28th June, 1847--Farnsworth caused the writ of possession to issue, and placed it in the hands of an officer to be executed, who, on the same day, went upon the premises with Farnsworth and others, and was proceeding to execute the writ, when the sheriff arrived with the injunction and served it on the parties. The officer had removed Fowler's family and effects from the dwelling-house into the yard or enclosure at the house, and was in the act of removing them and said effects off the premises, when any further action was arrested by the service of the injunction. He states that he had placed Farnsworth in possession of the house, and Fowler's wife and children and his effects were remaining in the yard when the injunction was served, and that nothing further was done in the execution of the writ of possession. Fowler then endeavored to resume the possession of the house, when he was violently and forcibly resisted, beaten, and driven away by Farnsworth and others who were there and acting with him. He went with his family to an out-house, a barn, on the premises, where he remained for some three months, Farnsworth retaining possession of the house.

There is strong reason to believe that Farnsworth knew that the injunction had been ordered, and perhaps issued, before he proceeded with his writ to take possession of the premises. On the 28th June, about sunrise, he applied for the writ, and forthwith proceeded to the officer to execute it and to be put in possession. When they arrived at Fowler's he informed them that he “had taken the case to court,” which Farnsworth must have understood to refer to the suit in chancery, as no other proceeding had been instituted. We think it may fairly be inferred, from the facts and circumstances in the case, that he was running a race against the sheriff to execute the writ of possession before the service of the injunction.

Now, upon this state of facts, Fowler brings the present action to recover possession of the house which was retained, as before stated, by Farnsworth and his tenants.

1. In considering the questions made in argument, we enquire, first, Was the writ of possession executed before the service of the injunction?

Now, as to what is a legal and valid execution of a writ of habere facias possessionem, we may observe that it is the duty of the officer to deliver the full and actual possession of the premises recovered. And it is said that the process is not understood to be executed, nor the execution complete, until the officer is gone and the plaintiff left in quiet possession. 2 Tidd's Pr. 1247. If the tenant do not peaceably and quietly...