Z. Thomasson's lessee vs. L. Keaton

Z. Thomasson’s lessee vs. L. Keaton. 1. Limitation. Seven years' possession by judgment debtor, holding at the time of sheriff's sale. Offer to redeem. Act of 1819, eh. 28, § 2. Amere offer to redeem, or to purchase in the outstanding title to land sold at execution sale, made by the judgment debtor suffered to remain in possession, after his posses-sory right has been acquired and perfected by operation of § 2, of the act of 1819, oh. 28, will not destroy the possessory right which had previously ripened into a fixed legal title. 2. Ejectment. Same. Effect of execution sale in divesting title. Act of 1819, ch. 28, § 2. To what extent possession of judgment debtor protected. In an action of ejectment for land bought by the plaintiff at execution sale, sold as the property of the judgment debtor and defendant in ejectment, who relies upon his seven years’ subsequent adverse holding as a defense to such action, he cannot by virtue of the act of 1819, ch. 28, § 2, be protected in such possession to the extent of the boundaries of said land as he held it under his title prior to such execution-sale, but only to the extent of his actual enclosures. The execution sale divested the defendant of all title, and his possession after the sale was that of a tenant by sufferance, which could only be protected to the extent of his actual enclosures, as they existed for seven years prior to the institution of the suit in ejectment. EROM CANNON. This is ejectment from tbe circuit court of Cannon county, in which the plaintiff claimed as purchaser at execution sale. The plaintiff in ejectment recovered a judgment against the defendant on the 18th of January, 1839, in the circuit court of Cannon, upon which execution was issued, and levied on the tract of land in this controversy. The land was sold by the sheriff under said execution on the 12th of May, 1840, and purchased by this plaintiff, the judgment creditor, to whom the sheriff’s deed was executed on the 23d of December 1844. Keaton, the judgment debtor, and defendant in ejectment, was in the actual possession of the land at the time it was levied on and sold, and had so continued ever since, claiming to hold for himself. This action of ejectment was commenced on the 15th of September, 1848, and it seems in the spring of 1848, Keaton offered (as was alleged) to redeem the land from the purchaser and plaintiff in this action. The tract of land contained about two hundred acres, only seventy of which were enclosed, and all of which Keaton had been in possession of for a period of about twenty years before and after the levy and sale. The defendant relied upon the statute of limitations, and the plaintiff set forth the offer to redeem in the spring of 1848, (but did not sufficiently prove the same,) as a recognition of his superior title by the defendant. There was a general verdict and judgment in the court below, at the October Term, 1853, in favor of the defendant, (Judge Davidson, presiding,) from which the defendant appealed in error to this court. Buegeb, for plaintiff in error, with whom was Gr. W. THOMPSON, who cited and commented upon Mitéhéll vs. Zipe, 8 Yerg., 182, and 1 Swan, 312. Beady, Eaee and E. IT. Ewing, for the defendant. [MAJORITY — McKinney, J.,] McKinney, J., delivered the opinion of the court. This case is upon a question arising upon the statute of limitations. The error relied upon is in the charge of the court. We think there is no just ground of exception to the instruction, supposed to be erroneous. The question is not properly raised by tbe proof in this record, as to what would be the legal effect of cm offer to redeem, made by the judgment debtor (suffered to remain in possession) to the purchaser, after an adverse possession by the former, of more than seven years from the date of the sheriff’s sale. The proof does not sufficiently establish the fact of such an offer to redeem. But even if it did, it is clear, that after a possessory right has been acquired and perfected by operation of the second section of the act of 1819, the mere offer to redeem, or rather to purchase in the outstanding legal title, (for this would be more properly the nature and effect,) could not be considered as sufficient to destroy the possessory right, which had previously ripened into a fixed legal right. If there be error in the charge it is in a part not complained of, and is this: The Court, after instructing the jury that the relation between the judgment debtor, (suffered to remain in possession after a sale of his land by the sheriff,) and the purchaser at such sale, ,was not the relation of 'landlord and tenant, in the technical sense of the term, proceeded to state, that the “inquiry in such case is, did the execution debtor continue to hold the land as before, in opposition to the purchaser? If so, a holding for seven years protects him in his possession of the same land which was pronounced to be his when sold by judgment and execution against him.” This instruction probably led the jury to the conclusion that the defendant was protected by the second section of the statute, not merely to the extent of his actual enclosures, but to the entire extent of the boundaries of tbe title under wbicb he held the land prior to the execution sale, and induced them to find, as they did, a general verdict for the defendant. This was clearly wrong. By the execution sale the defendant was divested of all title to the land sold. His possession after this sale, was that of a tenant by sufferance, without color of title; and consequently his possession was protected only to the extent of his actual enclosures; that is, his enclosures as they existed for the period of seven years before the commencement of the present action. Note. — It will be seen by reference to 2 Swan, 138, that this case has heretofore been before this court, and was adjudicated upon the question of the statute of limitations as a defense to the action. — Rep. The judgment will be reversed, and the case be remanded for a new trial.