Opinion
Submitted December 1, 1879
Decided January 13, 1880
J. Voorhees, for appellant. D.P. Barnard, for respondent.
The proceedings before the county judge to remove Tunis T. Cowenhoven and the defendant, from the possession of the premises resulted in an adjudication in favor of the judgment-creditor, and the issuing of a warrant of removal. Upon presenting this warrant for execution Tunis T. Cowenhoven took a lease of the premises, and the defendant Randall G. Cowenhoven, executed a contract whereby he agreed not to take any advantage of the possession of Tunis under said lease, and not to interfere with the premises until the proceedings before the county judge were reversed, whereupon the judgment-creditor refrained from executing the warrant. While occupying this position we think that the defendant, as well as Tunis Cowenhoven, was estopped from denying the title of the plaintiff in those proceedings. If the proceedings before the county judge should be reversed, they would not of course affect the rights of the defendant, or if Tunis and the defendant should quit the possession of the premises, the defendant would then be at liberty to assert any right which he had superior to the rights of the judgment-creditor. The facts are somewhat complicated. The deed to the defendant was subsequent to the judgment under which the plaintiff claims, but if that deed was executed in pursuance of an executory contract of sale, prior to the judgment, and especially if the defendant was in possession under such contract, the defendant's rights would be superior to those of the judgment-creditor. We do not deem it necessary to determine what effect, if any, the adjudication before the county judge would have upon this equitable right. All that we intend to decide is, that the defendant, while occupying the position he did, and while Tunis occupied the premises under the lease, was estopped from denying the title of the plaintiff, who succeeded to the rights of the judgment-creditor.
The judgment should be affirmed.
All concur.
Judgment affirmed.