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sales. But the unfortunate detention, from Napoleon, of the person from whom Thomas was to obtain the means of paying bis debts, and of relieving his property, can no more affect the validity of the sales than can the disappointment of any execution debtor, who may fail in his plans or expectations to procure the money necessary to save his property from being sacrificed. Without admitting that accident is a ground of relief in a court of law, it may be stated that Thomas, in order to put bimself in a meritorious attitude against the purchasers, ought to have made known, at the sale, his arrangements for paying the executions, and that the default was not voluntary or expected by him. Nothing of this kind did he do. His pres 'nce at the sale without any objection to it, without any infor) mation of the means he had used to arrest it, and with an assertion that, if he chose to do so, he could pay the debts for which his property was to be sold, could not be considered in any other way than'a determination to let the law take its course. That course has been run; the sheriff acted fairly and legally; the bystanders bid, as they had a right to do; the purchasers were not the plaintiffs in the executinns, or persons representing them, but third persons, who availed themselves of the public invitation to bid upon the property; the misfortune of the defendant cannot be allowed to unsettle legal principles. The court below erroneously sustained the prayer of the petitioner, and its judgment is reversed.
Carter vs. Reagan and wife.
CARTER vs. RcAGAN & WIFE.
The defendant in an action of Unlawful Detainer, having paid the balance of tlie
purchase money for the plaintiff and gone into possession under a contract that he was to retain it free of rent until the return of the plaintiff, holds under him, and not adversely, until the return of the plaintiff and demand of possession; and so is not entitled to the benefit of the act of limitations nor, under such contract, is he entitled to retain possession of the property until the money advanced is repaid him.
Appeal froin Desha Circuit Court.
Ilon. John C. MURRAY, Circuit Judge.
FARRELLY & FINLey, for appellant.
WEATHERFORD, for appellees.
Mir. Justice Fairchild delivered the opinion of the court.
Reagan and wise were entitled to the possession of certain town property in Napoleon, upon paying Cheathain and Stewart four hundred and twenty dollars. They were able to pay but three hundred dollars, but procured Carter to pay the remainder for them, and by doing so, he was authorized to receive possession of the property for Reagan and wife, and hold it free of rent till they should return from California, where they then were. It was about the first of January, 1855, that Carier, under this arrangement, took possession of the property; and he held it without interruption till the 25d of October, 1858, when leagan and wife, having returned from California, demanded possession. This demand not being com
plied with, this suit of Unlawful Detainer was brought to recover the possession withheld.
Carter contended that, as his possession of the property had lasted longer than three years, the plaintiff's could not maintain their suit. Until the plaintiffs returned and demanded the property, Carter held it under them, and for them, and his pos. session not being adverse to their claim is not a possession under the statute of Forcible Entry and Detainer, on which he can have the benefit of a plea of peaceable and uninterrupted possession against the plaintiff's. Burke vs. Ilale, 4 Eng. 328; UcGuire vs. Cook, 13 Ark. 452.
Carter also defended the suit on the ground that he was not obliged to yield the possession of the property, till the plaintiffs had offered to pay him the one hundred and twenty dollars which he advanced for them to Cheatham and Stewart. This would depend entirely upon the contract between the parties, supposing the contract, or a note or memorandum of it, to be reduced to writing, and signed by the plaintiff's. And this was the case, the whole communication upon this subject, on the part of the plaintiffs, being made in letters received from them from California. The letters were not produced, and their conients were proved to the court. Two witnesses testified concerning the effect of the letters upon this subject-one did not know whether there was any thing in them about an agreement, or assurance of the plaintiff's that Carter should have the property till the one hundred and twety dollars were paid to him: while the other testified that the plaintiff's would pay Carter the one hundred and twenty dollars that he paid out for them. Both witnesses agree that the letters were that Carter was to have the property free of rent, till the plaintiff's returned from California, but there is no proof that the possession was to be retained till the plaintiffs paid Carter the one hundred and twenty dollars. They would pay that sum, but uid not agree to let Carter hold the property, after their return, till the payment was made.
The first instruction asked by the defendant was therefore
abstract, not founded upon any evidence in the case, and was properly refused. The other instructions, both those given and refused, did not involve the court in error. The verdict was not against the evidence; the motion for a new trial was well overruled, and the judgment of the Circuit Court is affirmed.
STRONG vs. WHATLEY.
Upon a non-suit, in an action of Unlawsul Detainer, the defendant has no right to
have a jury called to assess his damages—his remedy is on the plaintiff's bond.
Appeal from Lafayette Circuit Court.
Hon. James K. Young, Special Judge.
Gallagher, for appellant.
Mr Justice Fairchild delivered tne opinion of the Court.
Upon the calling of this cause, which is an action of Unlawful Detainer, the plaintiff, failing in his application for a continuance, took a non-suit, and judgment for costs and restitution was given against him by the court. The defendant asked that a jury be called to assess his damages, which the court refused, and he appealed.
The application could not have been legally granted. When the plaintiff's right of possession is disputed, and the dispute is
in the course of determination by a jury, if they find that he has been wrongfulls, disposessed, they must give a verdict for the damages proved. Gould's Dig., chap. 72, sec. 17. But this case, though a disputed one, was never submitted to a jury. A jury cannot in this action be empanneled solely to enquire into the damages. And they cannot entertain such enquiry at all, except it be incidental to a trial upon the main issue of the case. For a recovery of his damages the defendant in the case below should have depended on the bond given by the plaintiff.
Let the judgment be affirmed.
ROGERS' EX’R8 vs. Duval, ad.
The acts of Congress to protect Indians from the payment of money on executory
Error to Sebastian Circuit Court.
Hon. J. M. Wilson, Circuit Judge.
VANDEVER, for the plaintiffs.
It is contended, on the part of the plaintiff in error, that the act of Congress, providing " that all ccecutory contracts, made