Bernheim v. Horton

• Decision Date: 24 May 1894
• Citation: 15 So. 822,103 Ala. 380
• Parties: BERNHEIM ET AL. v. HORTON.
• Court: Alabama Supreme Court

15 So. 822

103 Ala. 380

BERNHEIM ET AL. v. HORTON.

Supreme Court of Alabama

May 24, 1894

Appeal from circuit court, Conecuh county; J. R. Tyson, Judge.

Action of ejectment by E. B. Horton against James Rose, in which H W. Bernheim & Co. were permitted to come in and defend as Rose's landlords. From a judgment entered on the verdict of a jury directed by the court in favor of plaintiff defendants appeal. Reversed and remanded.

Farnham & Crum, for appellants.

Stallworth & Burnett, for appellee.

COLEMAN J.

Appellee Horton, sued one James Rose in the statutory action of ejectment to recover certain lands described in the complaint. Bernheim & Co., being the landlords of Rose, came in and defended. Both parties concede the legal title, at one time, was vested in Robert B. Witter. The plaintiff based his right to recover upon the following facts: Witter, through his agent, Feagan, for a consideration, agreed to sell the land in controversy to one Bethea, and in pursuance of said agreement, in the year 1886, signed a deed of conveyance of the land to the said Bethea, and delivered the same to Feagan, agent of the vendor, to be delivered to Bethea upon the payment of the purchase money. Bethea declined to comply with his agreement to purchase, and the deed was never delivered to him. Bethea never went into possession of the land, and at no time asserted title or interest in the same. One Rose then proposed to purchase the land at the same price, which proposition was accepted by Feagan. Rose paid Feagan the purchase money, who thereupon delivered the deed to Rose, which purported to convey the land to Bethea. Rose then took the instrument to Bethea, and obtained from him an indorsement thereon in the following terms: "Know all men by these presents, that we, Goodman Bethea ***, do this day transfer the within deed to William H. Rose." This deed was recorded. Rose went into possession of the land, and while in possession, claiming it as his own, executed a mortgage on the land to the plaintiff, Horton, and subsequently surrendered possession and the land to the mortgagee, in payment of the mortgage debt. The settlement between Horton and Rose was not in writing. One Reynolds, by permission of Horton, was permitted to occupy the land as his tenant. This statement shows plaintiff's entire title and upon which he recovered. It will be seen that he claims title through Bethea. The defendants Bernheim & Co., who were in possession by their tenant, Rose, offered to introduce proof of the following facts in defense of the action, which were excluded by the court: That they recovered judgment against Bethea, the named grantee in the deed, in the circuit court, upon which execution issued; that the lands were levied upon by the sheriff as the property of Bethea, and, after due notice, were legally sold to Bernheim & Co., and a deed in proper form executed to them by the sheriff; that they brought suit in ejectment against Reynolds, who was in possession, and recovered judgment against him for the lands, and, by virtue of a writ of possession, were put in possession of the same, and were holding and claiming them as their own at the time of the institution of the present action. Horton, the landlord of Reynolds, was not made a party to the ejectment suit against his tenant, Reynolds. The defendants also claim title through Bethea. There are but two or three propositions of law involved in the case.

We think it clear that neither the plaintiff nor the defendants hold the legal title, and that it yet remains vested in Witter. No title passed to Bethea, for the deed from Witter was never delivered to him, and consequently none was sold by the sheriff; and certainly the legal title did not pass to Rose by the deed to Bethea, or by a mere transfer by Bethea to Rose. Plaintiff also...