1 Ala. 273 (Ala. 1840), Bliss v. Smith

Citation1 Ala. 273
Opinion JudgeGOLDTHWAITE, J.
Party NameBLISS, ADMINISTRATOR OF LEWIS v. SMITH, ADMINISTRATOR OF YANCEY.
AttorneyERWIN, for the plaintiff in error MURPHY, contra.
CourtSupreme Court of Alabama

Page 273

1 Ala. 273 (Ala. 1840)

BLISS, ADMINISTRATOR OF LEWIS

v.

SMITH, ADMINISTRATOR OF YANCEY.

Supreme Court of Alabama

January Term, 1840

Writ of error to the Circuit Court of Sumter county.

ACTION of assumpsit, to recover the amount of a promissory note. No plea appears in the transcript of the record; but the cause was tried by a jury, as on issue joined. Verdict and judgment for the plaintiff.

The defendant gave in evidence, a deed from John Yancey, the plaintiff's intestate, to Moses Lewis, the defendant's intestate, John C. Whitsett, Daniel Green, and Christopher C. Scott, for the south half of the S.W. quarter of section 20, in township ten north, of range eighteen east, with covenants of warranty, dated 30th July, 1835; also, a patent for the same, to one Nock-ae-tubba, dated 3d November, 1837: thus showing paramount title in him. Evidence was also given, tending to show, that the note sued on, was given by Lewis to Yancey, in consideration of the purchase of the said land; and that Yancey died in possession of it.

On this state of facts, the Circuit Court instructed the jury, that the failure of title under the deed, was not a defence to the action, under the circumstances stated, there being covenants of warranty. To these instructions, the defendant excepted, and assigned for error, that the Circuit Court erred, in giving this charge to the jury.

ERWIN, for the plaintiff in error--insisted that there was no title whatever in the vendor, and therefore, there was a total failure of the consideration for which the note was given: this was more especially the case, as the possession was never given to the vendee; but remained in the vendor, at the time he died. He cited, and relied on, Christian v. Scott, (1 Stewart 490:) Peden v. Moore: (1 Stewart & Porter, 71:) and Watson v Jordam, (3 ibid. 92.)

MURPHY, contra.

GOLDTHWAITE, J.

1. Much stress has been laid on the circumstance of the vendor's remaining, and dying, in the possession of the land sold and conveyed; but this is not so important as the counsel for the plaintiff in error considers it; because the possession of the vendor is in all cases, transferred to the vendee eo instanti with the execution of the conveyance, by the statute of uses: (Aik. Dig. 94, § 37.)

2. This being the operation of the statute, the entire argument fails; for the authorities cited, are conclusive to show, that the want of title is no defence, where the possession...

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6 practice notes
  • 12 Wis. 26 (Wis. 1860), Ross v. Board of Supervisors of Outagamie Co.
    • United States
    • Wisconsin United States State Supreme Court of Wisconsin
    • Invalid date
    ...Million, 4 J. J. Marsh., 395; Harle vs. McCoy, 7 id. 318; Chiles vs. Jones, 4 Dana 479; Miller vs. ShacKleford, id., 264; Bliss vs. Smith, 1 Ala. 273; Ogden vs. Walker's Heirs, 6 Dana 420; Love vs. Edmonston, 1 Ire. Law R., 152; Bullen vs. Mills, 29 Eng. C. L. Rep., 16. If the lands are not......
  • 43 Me. 519 (Me. 1857), Porter v. Sevey
    • United States
    • Maine Supreme Judicial Court of Maine (US)
    • Invalid date
    ...conveyance exists, and the grantee is not evicted from the land, he is precluded from disputing the title of his grantor. Bliss v. Smith, 1 Ala. 273; 1 Sup. U. S. Dig., 652, pp. 28, 29, 30. The tenant (Sevey) had actual as well as constructive Page 522 notice of the mortgage under which the......
  • 21 Ala. 72 (Ala. 1852), Carter v. Doe ex dem. Chaudron
    • United States
    • Alabama Supreme Court of Alabama
    • Invalid date
    ...under such a deed as perfectly as if the party had been "enfeoffed with livery of seizin." Clay's Dig. 156, §35; Bliss v. Yancey, 1 Ala. 273; Matthews v. Ward's Lessee, 10 Gill. & J. 448; Bryan v. Bradley, 16 Conn. 474; Wells v. Prince, 4 Mass. It is not a mere release or quit......
  • 70 Ala. 452 (Ala. 1881), Munford v. Pearce
    • United States
    • Alabama Supreme Court of Alabama
    • Invalid date
    ...He is precluded, under this state of facts, from disputing the title of his vendor from whom his possession was acquired.-- Bliss v. Smith, 1 Ala. 273; Helvenstein v. Higgason, 35 Ala. There was no necessity to make either the administrator of Augustus Pearce, or his heirs at law, parties t......
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6 cases
  • 12 Wis. 26 (Wis. 1860), Ross v. Board of Supervisors of Outagamie Co.
    • United States
    • Wisconsin United States State Supreme Court of Wisconsin
    • Invalid date
    ...Million, 4 J. J. Marsh., 395; Harle vs. McCoy, 7 id. 318; Chiles vs. Jones, 4 Dana 479; Miller vs. ShacKleford, id., 264; Bliss vs. Smith, 1 Ala. 273; Ogden vs. Walker's Heirs, 6 Dana 420; Love vs. Edmonston, 1 Ire. Law R., 152; Bullen vs. Mills, 29 Eng. C. L. Rep., 16. If the lands are not......
  • 43 Me. 519 (Me. 1857), Porter v. Sevey
    • United States
    • Maine Supreme Judicial Court of Maine (US)
    • Invalid date
    ...conveyance exists, and the grantee is not evicted from the land, he is precluded from disputing the title of his grantor. Bliss v. Smith, 1 Ala. 273; 1 Sup. U. S. Dig., 652, pp. 28, 29, 30. The tenant (Sevey) had actual as well as constructive Page 522 notice of the mortgage under which the......
  • 21 Ala. 72 (Ala. 1852), Carter v. Doe ex dem. Chaudron
    • United States
    • Alabama Supreme Court of Alabama
    • Invalid date
    ...under such a deed as perfectly as if the party had been "enfeoffed with livery of seizin." Clay's Dig. 156, §35; Bliss v. Yancey, 1 Ala. 273; Matthews v. Ward's Lessee, 10 Gill. & J. 448; Bryan v. Bradley, 16 Conn. 474; Wells v. Prince, 4 Mass. It is not a mere release or quit......
  • 70 Ala. 452 (Ala. 1881), Munford v. Pearce
    • United States
    • Alabama Supreme Court of Alabama
    • Invalid date
    ...He is precluded, under this state of facts, from disputing the title of his vendor from whom his possession was acquired.-- Bliss v. Smith, 1 Ala. 273; Helvenstein v. Higgason, 35 Ala. There was no necessity to make either the administrator of Augustus Pearce, or his heirs at law, parties t......
  • Request a trial to view additional results

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