Opinion
10-16-1818
Noland v. Seekright Lessee of Cromwell
Wickham for the plaintiff in error. Stanard contra.
After a judgment in Ejectment in favour of Seekright lessee of Margaret Cromwell against Thomas Noland, the following order was made by the Superior Court of Frederick County, on the 4th of October 1814; viz, " On the motion of the plaintiff by his Counsel, and it appearing to the Court, by the Record, that this case terminated in favour of the plaintiff in the late District Court held at Winchester; and it farther appearing to the Court, that the defendant obtained an Injunction to stay proceedings on said Judgment; that said case has been many years pending in the Court of Equity, and in the Court of Appeals; that both said Courts decided in favour of the said plaintiff; and that, within the time of said litigation kept up and continued by the appeal of the defendant from Court to Court, the term of the plaintiff's lease hath expired, a Rule is granted the plaintiff upon the defendant to shew cause on Friday next, (the 5th day of the present term,) why the term in said lease mentioned should not be enlarged, and the Commonwealth's Writ of habere facias possessionem awarded the plaintiff, to cause him to have possession of his term, so to be enlarged, in the premises in the said lease mentioned."
The Rule being served, (in proof of which an affidavit was filed,) was after-wards enlarged from time to time, for reasons appearing to the Court, until the 9th of May 1815, when it was made absolute; leave was granted to enlarge the demise laid in the declaration, by inserting the word thirty, in the place of twenty, in the said declaration, so as to make the term of the demise thirty-one, instead of twenty-one years; and a Writ of habere facias possessionem was awarded, to cause the plaintiff to have possession of his term so enlarged.
To this Order the defendant obtained a Writ of Supersedeas from a Judge of this Court; stating in his Petition the following reasons; 1st, because the said Superior Court had no power after judgment to alter the Record, even if the Judgment had been entered in that Court; there being no clerical mistake, or any thing which should bring the case within the operation of the Acts of Jeofails: --2d, that, if even the Court had power to permit such alteration after judgment in the same Court, there was no such power when the judgment had been obtained in another Court: and 3d, because, as more than a year elapsed from the judgment, (the District Courts having ceased to exist much more than a year before the said Rule was obtained,) no writ of possession could be sued out without a scire facias first issuing.
Affirmed the order.
Wickham for the plaintiff in error.
Stanard contra. The doctrine that a Court of law will not take notice of an Injunction has been exploded in England. Here the execution of the Writ of habere facias possessionem was intercepted by Injunction, and twelve months did not elapse, from the time when the party was at liberty to take out the Writ, before it was actually taken out.
The Court of Appeals affirmed, in January 1814, the decree dissolving the Injunction and dismissing the Bill. See 4 Munf. 157. --Note in Original Edition.
Wickham admitted that where the party is delayed by Injunction, he is not put to his scire facias.
Note. See argumentin Gray's admx. v. Berryman, 4 Munf. 183-4.
Stanard, to shew the right of the Court to enlarge the term, cited Hunter v. Fairfax's devisee, 1 Munf. 218-238, and Vicars v. Haydon, Cowp. 841; in both which cases, the appellate Court itself changed the record by enlarging the term. The demise in Ejectment is merely fictitious: --it is a remedy invented to try the title; is under the control of the Court, and may be modelled so as to accomplish the purposes of justice.
3 Burr. 1295.
OPINION
October 16th, 1818, the Court affirmed the Order in question.