Garrison v. Savignac

• Decision Date: 31 March 1857
• Citation: 25 Mo. 47
• Parties: GARRISON, Respondent, v. SAVIGNAC, Appellant.
• Court: Missouri Supreme Court

25 Mo. 47

GARRISON, Respondent,

v.SAVIGNAC, Appellant.

Supreme Court of Missouri.

March Term, 1857.

1. A person in possession of premises at the commencement of an action of ejectment, to which he is not made a party, cannot be dispossessed by virtue of a writ of habere facias possessionem issued under a judgment for plaintiff in said suit.

2. If in the execution of such writ a person in possession of the premises at the commencement of the suit, and not a party thereto, is dispossessed, and possession given to the plaintiff, and upon the removal of the force the person dispossessed returns to the possession, the plaintiff will not thereby acquire such a possession by the execution of the writ as will entitle him to sustain an action of unlawful detainer against the person so returning to the possession.

Appeal from St. Louis Land Court.

This was an action of unlawful detainer, commenced October 10th, 1854. The plaintiff, Abraham Garrison, in his complaint charges that on the 19th and 20th days of August, 1854, he was lawfully possessed of the premises in controversy; that, being so possessed thereof, the defendant, Francis Savignac, on or about the 23d day of August, 1854, wrongfully and without force, by disseizin, obtained possession of the same, etc. The cause was taken to the St. Louis Land Court by certiorari. The plaintiff introduced in evidence the original record and proceedings in an action of ejectment in which Abraham Garrison, plaintiff in this action, was plaintiff, and Alfred Savignac defendant. In said action of ejectment in the Circuit Court of the United States, in which said Garrison sought to recover the premises in controversy in the present suit, a recovery was had by the plaintiff, and a writ of habere facias possessionem was issued, and the marshal of the United States puts the said Garrison in possession by his agent of said premises, and removed from the possession of same Francis Savignac, the defendant in the present suit. The said Francis was not a party to the said action of ejectment. The evidence introduced by plaintiff also showed that Francis Savignac lived upon the premises at the time of the execution of said writ; that he refused to deliver up the premises when demanded by the marshal, saying that he was not defendant in the ejectment suit; that he and his furniture were then (August 19th, 1854,) removed by force; that the family of said Francis Savignac, the next morning after the forcible removal, and said Savignac a day or two thereafter, resumed the possession of said premises; that a demand in writing had been made for the possession of said premises by plaintiff.

Defendants introduced evidence showing that Francis Savignac had been in possession, and the only person in possession for several years before the institution of the ejectment suit against Alfred Savignac; also that the judgment for plaintiff in said suit had since been reversed by the Supreme Court of the United States.

The court, at the instance of the plaintiff, then gave to the jury the following instructions: “1. The writ of possession read in evidence by the plaintiff commands the marshal to put the plaintiff in possession of the land described therein, without reference to the persons who may be in possession at the time the writ issues; it does not tell the marshal to put any particular person out of possession, but to put all persons out, except the plaintiff, who is to be put into possession. 2. If the jury find for the plaintiff, they must find the value of the premises monthly, and assess the damages sustained by the plaintiff by reason of the unlawful entry and detainer.”

The defendant then asked the following instruction, which was given: “1. The court instructs the jury that, unless they believe from the testimony before them in this case that the plaintiff, Abraham Garrison, had been, or was personally, or by his agent duly authorized, in actual possession of the premises in contest, prior to the 20th day of August, 1854, plaintiff cannot recover in this case.”

Defendant also asked the following, which were refused: “2. The court instructs the jury that if they find from the evidence in this case that the defendant was in peaceable lawful possession of the premises in dispute prior to, and up to, the 19th day of August, 1854, and that on that day the defendant was ejected from the premises by the United States marshal, on proceedings alleged to be legal proceedings, and the possession thereof delivered by said marshal to any other person than the plaintiff himself personally, then the plaintiff cannot recover in this case, unless it shall be shown by the testimony in this case that said possession was delivered to said person with the knowledge and consent of said plaintiff, and that said person was specially authorized by the said plaintiff, as his agent, to receive said possession. 3. The court instructs the jury that if the defendant was in possession prior to the filing of the suit read in this case of Abraham Garrison v. Alfred Savignac, in the United States Court, and was not a defendant in said suit, that the execution issued from the United States Court in that case did not authorize the marshal to expel Francis, the defendant in this case, from his possession, and in that case the plaintiff had not a legal right to the possession of the premises. 4. The court instructed the jury that if the possession of the premises in dispute was taken from the defendant on the 19th day of August, 1854, by the United States marshal, and delivered to any other person, or persons, than the plaintiff, and that said persons, or either of them, were acting as general agents, or attorneys in fact, for said plaintiff, legally authorized by him to act as such, without special reference to the possession of said premises as passing from said United States marshal to said persons, and without special authority, directions or agency to receive said possession, and that said possession was taken by said United States marshal in pursuance of an execution issued on a judgment in the Circuit Court of the United States for the District of Missouri, in favor of said plaintiff, against said defendant, and that at said time said...