Davis v. Curry

• Decision Date: 26 July 1888
• Citation: 85 Ala. 133,4 So. 734
• Parties: DAVIS v. CURRY ET AL.
• Court: Alabama Supreme Court

4 So. 734

85 Ala. 133

DAVIS v. CURRY ET AL.

Supreme Court of Alabama

July 26, 1888

Appeal from circuit court, Chilton county; JAMES W. LAPSLEY, Judge.

This was a statutory real action in the nature of ejectment, by Charles L. Davis against Samuel Curry and W. C. Hester, to recover a certain tract of land described in the complaint. During the pendency of the suit the plaintiff sold his right title, and interest of the property in controversy to one Reynolds; and when the case came on for trial the defendants put in their plea of "since the last continuance." Issue was joined on this plea; and it appearing that plaintiff has executed a deed, conveying all the right title, interest, and estate he had in the land sued for to the said Reynolds, the court charged the jury, at the request of the defendant, in writing: "If they believe the evidence in the case, they will find for the defendant." To this giving of this charge the plaintiff excepted, and assigns the giving of the same as error.

W S. Cary and Watts & Son, for appellant.

Henry Wilson, for appellees.

STONE C.J.

This case went off in the court below on the defense that, after the suit was brought, Davis, the plaintiff, sold and conveyed all his interest in the land to one Reynolds. This was interposed as a full defense, by plea "since the last continuance." To this it was replied that at the time of the sale and conveyance the defendants were in the adverse possession under claim of right. Their plea of not guilty was an admission that they were in possession, and a denial of plaintiff's right to recover. McQueen v. Lampley, 74 Ala. 408. There can be no question that when lands are in the adverse possession of another, holding under claim of right, they cannot be sold and conveyed, so as to vest in the grantee a right to maintain an action in his own name for their recovery. The reason is that such conveyance is void as against the adverse holder. 3 Brick. Dig. p. 18, § 51. As between the parties however, and all persons other than the adverse holder, the sale is legal and binding. After such sale the vendor or original owner may maintain an action in his own name for the recovery of the possession; and, if his title was originally good, his sale and conveyance oppose no obstacle to his right of recovery. The reason is this: The conveyance being made pending the adverse holding, is, as to the defendant, the same as if none had been made. It is void as to him. It confers no rights against him, and he can claim no benefits or defenses under it. Bernstein v. Humes, 60 Ala. 582; Yarborough v. Avant, 66 Ala. 526; Johnson v. Cook, 73 Ala. 537; Sedg. & W. Tr. Title Land, § 190; Jackson v. Van Dusen, 5 Johns. 159; Livingston v. Proseus, 2 Hill, 526; Farnum v. Peterson, 111 Mass. 148; Steeple v. Downing, 60 Ind. 478. Such facts constitute a...