Wesley v. Tindal

• Decision Date: 02 July 1897
• Parties: WESLEY v. TINDAL et al. Ex parte VANCE.
• Court: U.S. Court of Appeals — Fourth Circuit

81 F. 612

WESLEY v. TINDAL et al.

Ex parte VANCE.

United States Circuit Court, D. South Carolina.

July 2, 1897

Samuel W. Melton (Wm. A. Barber, Atty. Gen., of counsel), for petitioner.

Wm. H Lyles, for respondents.

SIMONTON Circuit Judge.

This is a case at law. The plaintiff in an action of ejectment against the defendants on the record obtained a verdict on 75h April, 1894, entered judgment thereon, and issued execution. Upon appeal to the circuit court of appeals of the Fourth circuit the judgment below was affirmed. 13 C.C.A 160, 65 F. 731. The cause having been removed by certiorari into the supreme court of the United States, the whole record was reviewed in that court, and the judgment below again affirmed. 17 Sup.Ct. 770.

Proceeding to enforce his execution, the plaintiff is met with the petition of this petitioner. This petitioner sets out that he is the state commissioner under the dispensary law; that he is now, as such commissioner, in the possession of the real estate known as the 'Agricultural Hall,' the subject of the action at law in this case; that he was not a party to that action; that he did not acquire possession under said defendants, but as the successor of J. T. Gaston, acting commissioner; that Tindal the defendant, at the time of the commencement of the action, was secretary of state for the state of South Carolina, having, as such, control and custody of the property; that the other defendant was a watchman appointed to take care of the property; that Tindal's term of office expired January, 1895, and that the employment of Boyles also terminated, and that he is now dead; that neither at the time of the commencement of said action, nor during its progress, was notice of lis pendens filed any where; that the possession of the petitioner was not acquired through or under Tindal or Boyles. Then follow a number of paragraphs attacking the validity of the sale of this property in dispute, and of the title of plaintiff. He claims to be in possession of the property as a tenant, occupying the same in the conduct of the business of the state dispensary. The prayers are: First. For the judgment of the court whether the execution issued in this case will authorize any officer of this court to disposses the petitioner. Second. If the court should so hold, then that judgment herein be stayed until the right of possession claimed, and now enjoyed by petitioner, be determined according to the forms and procedure of this court. Third. That the judgment be opened, and that the petitioner be let in as a party defendant, to answer his defense to this action as he may be advised, to be tried and determined in due course of procedure in said cause at law. Fourth. And for general relief.

As has been seen, the plaintiff in this case brought his action of ejectment. Under this action, he was compelled to sustain his title against the world, to stand upon the strength of that title alone. After a trial in this court, it was determined upon such proof that he was the owner of the property. In that action the defendants set up the defense that they were state agents, holding the property, not in their own right but solely for the state; one of them, Mr. Tindal, being in possession, virtute officii, as secretary of state. This defense was overruled in the face of the proof of title in plaintiff. Now, we have another state officer alleging that he is in possession, and claiming that, because he is a state officer, he should not be disturbed, nor called upon to recognize the title of plaintiff. To aid him, he makes...