Clark v. Parkinson

Hoar, J.

The court are of opinion that an attachment for contempt should not be granted; because an officer, serving a writ of possession, has no authority by his precept to remove from the land described therein any person who is not a defendant in the suit in which the writ issued, nor holding under a defendant, and who was in occupation of the land at the time the suit was commenced, claiming by a title independent of the defendant. The writ of possession is the result or fruit of a judgment; and the judgment is the legal determination of the rights of those only who are parties or privies to it. Even a judgment in rent is binding upon all persons in interest, only *136 because all persons in interest are required, and have a right, to come in and assert their title to the property which the judgment binds, in the suit or proceeding in which the judgment is rendered.

It is apparent that the judgment of the court in a real action, although it may determine, as against the tenant, that he held unlawful possession of the demanded premises at the time of bringing the suit, cannot decide this as against any person not privy in estate with him. The judgment may be recovered upon default, which is taken as the confession of the tenant, and can bind no one but himself and those claiming under him. If it is the result of a trial, there is no good reason why it should be held more conclusive upon the possession than upon the title In either case it is a judgment between the parties, upon such a case as they have chosen or have been able to present.

The officer who serves the writ may take a bond of indemnity, and the English text books all state that it is the usual practice to do so. This may dispose of the objection that he is required by his precept to do a precise thing, and that he should not have to determine at his peril whether he is thereby committing a trespass. The writ is procured by the demandant in the real action, and it is for him to take care that he includes in his suit all the actual parties in possession, claiming title.

We find that the text books on the duties of sheriffs all state in general terms that in serving a writ of possession he should remove all persons from the premises; and the digests and dicta in reported cases undoubtedly contain a similar statement. They all adopt substantially the same language, which is taken from Upton v. Wells, 1 Leon. 145. Com. Dig. Execution, A, 5. Crocker on Sheriffs, §§ 554,556,557. Allen on Sheriffs, 251. N. E. Sheriff, 141. In Howe v. Butterfield, 4 Cush. 305 , it was said by Mr. Justice Wilde that an officer was authorized and bound, for the purpose of delivering possession of a house, “ to remove from the possession all persons therein, and especially those claiming under the party against whom judgment had been recovered.’But all these expressions must be construed secundum subjeo temí materieni¡ and as referring to the tenant, or persons in privity *137 with the tenant, or mere strangers or intruders. No case has been cited in which it was decided that one in possession before the commencement of the suit could be lawfully dispossessed upon an execution issuing upon a judgment in a suit between third persons. And in Gwynne on Sheriffs, 418, the rule is stated otherwise, and the true distinction made. In Ex parte Reynolds, 1 Caines R. 500, it is said to be “ a settled rule of practice, that no tenant who was in possession anterior to the commencement of an ejectment, can be dispossessed upon a judgment and writ of possession, to which he is no party;” and a writ of restitution was ordered. To the same effect are the Kentucky cases in 5 Littell, 305 ; 1 A. K. Marsh. 333; 2 Ib. 40. See also 2 Tidd’s Practice, 1033; Johnson v. Fullerton,

44 Penn. State R. 466.

Petition dismissed.