Doolittle v. Robertson

• Decision Date: 05 February 1896
• Citation: 109 Ala. 412,19 So. 851
• Parties: DOOLITTLE ET AL. v. ROBERTSON ET AL. [1]
• Court: Alabama Supreme Court

19 So. 851

109 Ala. 412

DOOLITTLE ET AL. v. ROBERTSON ET AL. ^[1]

Supreme Court of Alabama

February 5, 1896

Appeal from circuit court, St. Clair county; George E. Brewer Judge.

Action by M. A. Doolittle and others against Griff D. Robertson and others. Judgment for defendants, and plaintiffs appeal. Reversed.

This was a statutory action of ejectment, brought by the appellants against the appellees, to recover certain property specifically described in the complaint. Upon the introduction of all the evidence, the court, at the request of the defendants, gave the general affirmative charge in their behalf. The plaintiffs duly excepted to the giving of this charge, and also excepted to the court's refusal to give the general affirmative charge asked by them. There were verdict and judgment for the defendants. The plaintiffs appeal, and assign as error the giving of the charge requested by the defendant, and the refusal to give the charge asked for by the plaintiffs.

M. M Smith, for appellants.

James T. Greene, for appellees.

COLEMAN J.

The appellants, as plaintiffs, instituted the statutory action of ejectment to recover certain lands, in the possession and claimed by the defendants. The facts are agreed upon, and they present a single question of law for review. Elizabeth Brown, the mother of plaintiffs, went into possession of the land under a parol gift from her father in 1853. In 1868 he executed her a deed to the land, with covenants of warranty and she remained in open, notorious, and adverse possession of the land as her own until the date of her death, which occurred in 1883; and her husband, as such, continued in possession until the date of his death, in 1888. In the years 1857 and 1858, some of the plaintiffs and the ancestors of the others, who were children and heirs at law, by warranty deed, conveyed the lands to John J. Mays, under whom the defendants claim. It will be seen that, at the time of the execution of the deed to John J. Mays, the grantors, now plaintiffs, were not in possession of the lands, and, it seems, have never been in possession, nor was their vendee until after the year 1888. The legal proposition is whether the title and interest inherited by plaintiffs from their mother by virtue of their deed to John J. Mays inured to him. The facts show that, by their deed, they sold and conveyed not such interest as they may have then owned, but the land with covenants of general warranty. Are they estopped from asserting an after-acquired title under the facts of the case? In no state, perhaps, has the rule been more rigidly adhered to than in this "that when one sells land to which he has no right with warranty of title, and he afterwards acquires a good title, it passes instantly to his vendee, and h...