Opinion
Fall Session, 1879.
Moore, for the plaintiff.
Nicholson and Cullen, for the defendant.
RULE to show cause wherefore a writ should not be granted to put the plaintiff in possession of a tract of four acres of land and a small dwelling-house thereon, sold by the sheriff on a writ of venditioni exponas at the suit of the plaintiff against the defendant and brought by him and returned to this term of the court.
The defendant appeared at the return of the rule and contested the issuing of the writ of possession, and on the hearing it appeared that one Samuel Tull went into possession of a larger tract of eighty acres, of which the four acres in question were claimed to be a portion, under a contract to buy it and an alienation bond therefor from Jacob Nicholson in the year 1850, and while so in possession of it sold it to James H. Moore, who died in possession of it in 1872. It was proved by a daughter of his that he went into possession of the land about twenty-five years since and died in possession of it about seven years ago, and that she had since been in possession of the four acres in dispute and the small frame house on them until the same, with her household goods in it, had been removed entirely from them without her knowledge and while she was away. It was admitted that Robert Tull, a son of Samuel Tull, had entered and taken possession of the four acres in question some time before the sale of them by the sheriff under the writ.
The Court, on the facts proved, discharged the rule.