Ritchie v. Johnson
| Decision Date | 03 July 1888 |
| Citation | 8 S.W. 942 |
| Parties | RITCHIE <I>v.</I> JOHNSON <I>et al.</I> |
| Court | Arkansas Supreme Court |
John B. Jones, for petitioner. U. M. & G. B. Rose and L. A. Byrne, for respondents.
On the 24th of October, 1878, James Ritchie brought suit by ejectment, in the Miller circuit court, against Bero Berliner and Sarah L. Berliner, his wife, for the recovery of lot No. 5, in block No. 73, in the town of Texarkana, Ark. Pending the subsequent litigation, Ritchie died, having previously conveyed the property to his wife, Lucy Ritchie. The case was afterwards transferred to the equity docket, and at the July term, 1885, a decree was rendered in favor of the defendant, Sarah L. Berliner, as the owner and party in possession of the property. On appeal to this court, and at the May term, 1887, the decree was reversed, and a judgment entered in favor of Lucy Ritchie for the recovery of the premises in controversy. McLain v. Burliner, 49 Ark. 218, 4 S. W. Rep. 768. Upon this judgment a writ of possession was issued, directed to the sheriff of Miller county, commanding him to take the possession from the defendants, Bero and Sarah L. Berliner, and deliver the same to the plaintiff, Lucy Ritchie. The sheriff returned this writ unserved, alleging as his reason therefor that he did not find the defendants in possession, but found them in possession of H. S. Johnson and Jane R. Johnson, his wife, who claimed title under a deed from the defendant Sarah L. Berliner to Jane R. Johnson, dated October 13, 1885, and also under bond for title from J. F. and J. C. Kirby, dated November 29, 1887, the Kirbys claiming title under a patent from the state of Arkansas. Thereupon Lucy Ritchie filed her petition in this court, reciting her recovery here, the issue of the writ of possession, and refusal of the sheriff to execute it, and praying that an alias writ be issued, commanding him to take the possession of the premises from H. S. and Jane R. Johnson, and deliver them to petitioner. Mrs. Johnson filed a response, alleging that she was not a party to the suit, or in any way bound by its determination, and claiming that she holds the possession under a conveyance made by the state of Arkansas to J. F. & J. C. Kirby on the 25th of September, 1883, and under a bond for title from them to her on the 29th of November, 1887. Copies of these deeds are filed as exhibits. To this response Mrs. Ritchie filed an answer, denying that Mrs. Johnson claimed title under the Kirby deed, and alleging that, until the determination of this suit in June, 1887, her only claim of title was under a deed from the defendant Sarah L. Berliner, executed October 13, 1885, and during the pendency of this suit. This deed is exhibited with the answer. These are all the material facts in the case as presented by the pleadings and and exhibits.
There is no evidence as to the time when Mrs. Johnson actually went into possession. The only positive statement with regard to possession at all is in Mrs. Johnson's answer, filed January 30, 1888, in which she says she holds possession under the Kirby deed. Several weeks before this, the sheriff, when proceeding to execute his writ, had found her in possession. The law presumes that she was holding under the defendant; and if this was not the case, and she really held by an independent title, it is incumbent upon her to show it. Sampson v. Ohleyer, 22 Cal. 200; Leese v. Clark, 29 Cal. 664; Wetherbee v. Dunn, 36 Cal. 147; Freem. Ex'ns, § 475. The mere statement, made several weeks afterwards in an unsworn pleading, that she was then holding by such title, would scarcely be sufficient to rebut the legal presumption. This together with the fact that she had obtained a deed from the defendant Mrs. Berliner since the commencement of the suit, forces us to the conclusion that she acquired the possession under her. It is settled beyond controversy that, in an action of ejectment, a party who goes into possession under the defendant is liable to be turned out by the writ. Hanson v. Armstrong, 22 Ill. 442; Wallen v. Huff, 3 Sneed, 82; Howard v. Kennedy, 4 Ala. 592; Freem. Judgm § 171, and cases cited; Freem. Ex'ns, § 475, and cases cited. It is equally well settled that a party holding by independent and paramount title will not be turned out. Long v. Morton, 2 A. K. Marsh. 39; Clark v. Parkinson, 10 Allen, 133; Ford v. Doyle, 37 Cal. 346; Garrison v. Savignac, 25 Mo. 47; Powell v. Lawson, 49 Ga. 290. ...
To continue reading
Request your trial