Smith v. Allen

Blackford, J.

The object of the parol testimony rejected by the Circuit Court,-was to prove the existence of an equitable title in the defendant below, to the premises in question, prior to the date of the judgment. The.principle, however, is clearly laid down, that, in the action of ejectment, an equitable title cannot be set up in opposition to a legal one. Jackson, d. Smith, v. Pierce, 2 Johns. Rep. 221. — Jackson, d. Whitbeck, v. Deyo, 3 Johns. Rep. 422. We think, therefore, the Court were right in rejecting the testimony objected to (1) ;

The circumstance of M'Campbell's deed to Smith, the defendant below, being dated previously to that of the sheriff to Big *24 ger, the lessor of the plaintiff below, is of no consequence. Both parties claim from M? Campbell, whose real estate was bound tor the payment of the judgment from its date. His subsequent con» veyance to Smith was subject to that incumbrance. The purchaser’s title at sheriff’s sale takes effect from the date of the judgment. If he had not the fee, the appellant contends he was at least a tenant at will, and was therefore entitled to notice to quit; but it certainly does not appear from the record, that there was any tenancy existing in this case, which required the notice contended for. The motion for a new trial was correctly overruled.

Nelson, Hurst, and Moore, for the appellant. Dewey, Ferguson, and Raymond, for the appellee. Holman, J.,

gave no opinion, having been the President of the Circuit Court in which the cause was originally decided.

Per Curiam.

The judgment is affirmed, with costs.

In the time of Ld. Mansfield, the Court of K. B. assumed a kind of equitable jurisdiction in actions of ejectment. White v. Hawkins, Bull. N. P. 96.— Keech v. Hall, Doug. 21, note 7. — Moss v. Gallimore, ibid. 279. — Lade v.Hol ford, Bull. N. P. 110. — Goodtitle v. Knot, Cowp. 43. — Doe v. Pott, Doug. 709. — Doe v. Pegge, 1 T. R. 758, note a. These cases, however, are now overruled, and the principle is settled, that in a Court of law the legal title must prevail. Doe v. Staple, 2 T. R. 684. — Weakley v. Rodgers, 5 East, 138, note. — Goodti tle v. Jones, 7 T. R. 43. — Doe v. Wharton„ 8 T. R. 2. — Roe v. Reade, ibid. 118. — Doe v. Wroot, 5 East, 132 and notes. — Halford v. Dillon, 2 Brod. and Bingh. 12. — Jackson v. Sisson, 2 Johns. Cas. 321 . — Jackson v. Van Slyck, 8 Johns. Rep. 487. — Shute v. Davis, l Peters’ Rep. 431. The case of Weakley v. Rogers, supra, was similar to that m the text: there the defendant had paid the consideration money, entered into possession, and built a house, under an agreement with the plaintiff’s lessor for a lease for life. So also was Shute v. Davis, supra: there the defendant relied on a written agreement of the agent of the plaintiff’s lessor for the sale and conveyance of the premises. These, however, being equitable claims only, were considered no defence against the legal title. Vide Adams on Ejectment, 32, 33.