36 Ala. 589 (Ala. 1860), Gimon v. Davis

Citation:36 Ala. 589
Opinion Judge:A. J. WALKER, C.J.
Party Name:GIMON v. DAVIS.
Attorney:L. L. LUDE, for appellant.
Court:Supreme Court of Alabama
 
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Page 589

36 Ala. 589 (Ala. 1860)

GIMON

v.

DAVIS.

Supreme Court of Alabama

June Term, 1860

[REAL ACTION IN NATURE OF EJECTMENT.]

APPEAL from the Circuit Court of Mobile.

Tried before the Hon. C. W. RAPIER.

The destruction of a deed of conveyance by or at the instance of the grantee does not reinvest the grantor with the legal title.

THIS action was brought by Dominique Gimon, against Isaac S. Davis, to recover a city lot in Mobile, which was particularly described in the complaint. The only plea was, not guilty. The plaintiff derived title under a purchase at sheriff's sale, under execution against John Ives, and a sheriff's deed dated the 2d April, 1855; while the defendant claimed under a deed from Thomas Condon, as trustee for the wife of said Ives and her children, and said Ives and wife, dated the 20th March, 1856. It appeared on the trial, as the bill of exceptions shows, that the lot in controversy once belonged to Price Williams, who, on the 15th September, 1854, sold and conveyed it to said John Ives; taking his notes for the purchase-money, with a mortgage on the lot to secure their payment. This mortgage, which was in the usual form, was duly recorded; but the deed from Williams to Ives never was recorded. Williams, who was introduced as a witness by the plaintiff, testified, "that about the 12th December, 1854, according to his best recollection, said Ives came to him, and said, that he was unable to pay the purchase-money for said lot, but had a friend, one Thomas Condon, who would pay it, and requested witness to make a deed to said Condon, in trust for his (Ives') wife, and that he would surrender or destroy his deed; that he (witness) consented to do this, and went with said Ives down to the premises, where they found Condon and Mrs. Ives; that the money was there paid to him, either by Condon, Ives, or Ives' wife, and his deed to Ives was thereupon torn to pieces and destroyed, either by Ives himself, or by witness at his instance, he could not remember which; and that he then made a deed to said Condon, as trustee for Mrs. Ives and her children, and dated it as of the 15th September, 1854."

"The court charged the jury, among other things, that if the deed from Williams to Ives was never recorded, and was intentionally destroyed by Ives, or at his instance, with a view of having a conveyance made to another party; and if Williams afterwards made...

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