Opinion
04-19-1872
LYONS v. MCGUIRE.
Young, for the appellant. Cannon and Marshall for the appellee.
1. A creditor extending the land of his debtor under an elegit, stands, in judgment of law, as if he had taken a lease for years in satisfaction of his debt; and by virtue of such extent, he acquires a title to the premises which may be the subject of adjudication in this court, as a controversy concerning the title of land.
2. The officer executing a writ of elegit does not deliver to the creditor actual possession of the premises, but only the legal possession; which may be enforced by ejectment, or by writ of unlawful detainer when the cause of action has accrued within three years.
3. If, after such extent, the possession of the premises is withheld by the debtor, or some one claiming under him, the tenant, by elegit, may recover the same by action, and hold over even after his term has expired; and this, though his term has expired before the trial of the cause.
This was a proceeding in unlawful detainer in the Circuit court of the city of Richmond, instituted in September 1869, by James Lyons, against Hunter McGuire. Upon the trial, which occurred in December 1869, the defendant demurred to the evidence, and the court rendered a judgment in his favor. The facts are as follows:
On the 4th of March 1868, Lyons recovered a judgment in the Circuit court of the city of Richmond, against Martha E. Hill and T. Clay Maddox, for two hundred and fifty-eight dollars, with interest and costs; which was docketed in the office of the Hustings court, on the 10th of March 1869. In March 1868, Lyons sued out a fi. fa. upon this judgment, which was returned " no effects; " and on the 29th of February 1869, he sued out an elegit upon the judgment. This elegit went into the hands of the sheriff of the city, and an inquisition was taken; and the jury found that Mrs. Hill was possessed of a house and lot on Broad street, in the city, which is described in the inquisition of the annual value of seven hundred and fifty dollars; and the sheriff returned that it was delivered to the plaintiff at that value.
The defendant was in possession of the house. He held, first, under an assignment of a lease to himself from a former tenant, dated the 20th of April 1868, which was to commence on the 1st of July 1868, and continue until the 1st of July 1869; and then under a lease from Mrs. Hill, dated the 27th of February 1869, to commence on the 1st of July 1869, and continue until the 1st of July 1870, for which he paid her five hundred dollars in advance. It appears that, when this lease was about to be made, the judgment docket was examined, and Lyons' judgment was not then upon it; but it also appeared that the defendant had been told by his counsel, that Mr. Lyons had a judgment against Mrs. Hill and Maddox, and threatened to sue out an elegit; but that he was doubtful whether an elegit would be valid, for a reason he stated. McGuire paid $500 in cash for the lease, and had been indemnified against loss.
Upon the application of Mr. Lyons, a supersedeas to the judgment was awarded by this court.
Young, for the appellant.
Cannon and Marshall for the appellee.
OPINION
STAPLES, J.
The court is of opinion that a creditor extending the land of his debtor under an elegit, stands, in judgment of law, as if he had taken a lease for years in satisfaction of his debt; and, by virtue of such extent, he acquires a title to the premises which may be the subject of adjudication in this court, within the true intent and meaning of the constitutional provision conferring jurisdiction upon the Supreme Court of Appeals in controversies concerning the title or boundaries of land.
The court is further of opinion, that the officer executing a writ of elegit does not deliver to the creditor actual possession of the premises, but only the legal possession, which may be enforced by ejectment, or, at the option of the creditor, by writ of unlawful entry and detainer, where the cause of action has accrued within three years. If after such extent the possession of the premises is withheld by the debtor, or some one claiming under him, the tenant by elegit has the right to recover the same by action, and to hold over even after his term has expired.
The court is further of opinion, that the plaintiff in error, by virtue of his writ of elegit executed, was entitled to the possession of the premises in controversy at the time of the emination of his writ; and as the said tenement was withheld by a party claiming under the debtor, and with his consent, the plaintiff's right of recovery was not affected or impaired by the expiration of the term before the trial of the action.
The court is therefore of opinion, that the judgment of the Circuit court of the city of Richmond is erroneous, and that the same should be reversed and annulled. It appearing, however, by the admission of the plaintiff in error, that he has been satisfied his debt since the writ of error and supersedeas was awarded, the court deems it necessary to render judgment only for the costs incurred by the plaintiff in error.
JUDGMENT REVERSED.