Kellam v. Janson

A lessfee claiming through a vendee of land who had an equitable title, has no title as against a purchaser at sheriff's sale under a prior judgment against the vendee, as the sale divests the vendee's title: therefore, a tenant of the purchaser from the vendee of his equitable interest in the land, the purchase being subsequent to a judgment against the vendee, has no right to maintain trespass against the purchaser at sheriff's sale under said judgment, for entering the dwelling-house on the premises, in the absence of the tenant, and carefully removing his goods.

Error to tbe Common Pleas of Wayne county. This was an action of trespass by William Janson v. George Kellam and others, for forcibly removing his household furniture from a dwelling-house, which Kellam had purchased at sheriff’s sale, and of which Janson took possession after the sheriff’s sale. Warder & Brother owned a piece of land, and on the 24th January, 1846, they contracted to sell it to Abraham Lane. Lane entered into possession, paid part of the purchase-money, cleared some of the land, and built a house. Kellam obtained a judgment against Lane to September Term, 1848. After the entry of the judgment, viz., on 9th July, 1849, Lane assigned to Alexander Calder, his interest under the contract, with notice of the existence of the judgment in favor of Kellam, but reserving the grass then growing on the land. Lane left the possession in 1849, before the sheriff’s sale. On 7th September, 1849, Warder & Brother conveyed the land to Calder. On the 80th November, 1849, the land was sold at sheriff’s sale to Kellam, under his judgment, and the sheriff’s deed to him was acknowledged on 8th December, 1849. After the sheriff’s sale, Lane delivered the key of the house to Kellam. From about the 1st November, 1849, till February, 1850, the premises were vacant. In February, 1850, Janson, with knowledge of Kellam’s title, moved into the house under a lease from Qalder. In March, 1850, Kellam and others went to the house where Janson and wife were absent. The house was entered through a window, the door was opened and the goods put out. The goods were not of much value, and were carefully removed; some of them got wet. For the entrance and removal of the goods this action was brought. Eldred, J., charged, inter alia, as follows:— “ Abraham Lane had an equitable interest in the premises on which Kellam’s judgment was a lien, before Lane assigned his contract to Calder, and that equity could be sold by the sheriff. The purchaser could take possession of the premises if it was vacant and no one in possession. If there was a person in possession, he could obtain it from him by instituting proper proceedings at law. But if there was a person in possession claiming under Calder, the assignee of Lane, the purchaser under the sheriff’s sale had no right to enter the house and remove the goods by force out of the door, and thereby acquire the possession. “ There seems to be but little dispute about the facts in the case: the questions are, can the plaintiff sustain this suit; and, if so, what damages should be allowed him ? “ If Abraham Lane sold out his contract to Calder and delivered up possession of the premises to him, and if Calder took possession (by himself or his agent) and leased it to plaintiff, and in pursuance of it moved into the house, the plaintiff can maintain this action against George Kellam for removing the goods out of the house. The evidence on the subject referred to the jury. If the jury find for the plaintiff under the rule laid down by the court, they will ascertain what damage the plaintiff has sustained, and render their verdict accordingly.” Yerdict was rendered for plaintiff for $23. Error was assigned to the charge.