Pearson v. King

• Decision Date: 26 April 1892
• Citation: 99 Ala. 125,10 So. 919
• Parties: PEARSON ET AL. v. KING.
• Court: Alabama Supreme Court

10 So. 919

99 Ala. 125

PEARSON ET AL. v. KING.

Supreme Court of Alabama

April 26, 1892

Appeal from city court of Birmingham; H. A. SHARPE, Judge.

This was an action of ejectment brought by David Pearson, the ancestor of the present plaintiffs, Baxter Pearson and others, against Peyton G. King. There was a demurrer to plaintiffs' replication, which was sustained, and plaintiffs appeal. Reversed.

Webb & Tillman, for appellants.

W M. Brooks, for appellee.

WALKER J.

This is a common-law action of ejectment. David Pearson, in whom one of the demises was laid, having died pending the suit, it was revived as to that demise in the names of his heirs at law and of the administrator of his estate. The defendant interposed a special plea to the effect that, since the commencement of the suit, the heirs of David Pearson had executed a conveyance of the land sued for to the defendant. A demurrer to this plea having been overruled, the plaintiffs interposed a replication thereto to the effect that before the beginning of the suit David Pearson was seised of the legal title to the land sued for, and executed a conveyance thereof to Strange and White, when he knew that the land was in the adverse possession of the defendant's tenant; that this action was begun and is prosecuted for the use and benefit of said Strange and White; that the deed to them was duly recorded before the execution of the conveyance by Pearson's heirs to the defendant; and that the defendant had notice of David Pearson's deed to Strange and White when he obtained the deed from David Pearson's heirs to himself pending this suit. The defendant's demurrer to this replication was sustained. It is well settled that a sale and conveyance of lands, which are at the time in the possession of a third person, holding adversely to the grantor, is void as against the adverse possessor, and will not support ejectment by the grantee against him. 3 Brick Dig. p. 18, § 51. The grantor in such conveyance may still maintain ejectment against the adverse holder, and the latter cannot plead the conveyance in bar of the suit. The conveyance is void as to him, and he cannot set it up as a defense. Davis v. Curry, 85 Ala. 133, 4 South. Rep 734. The conveyance is void only as against the adverse possessor and persons in privity with him. As to all others and as between the parties, it is valid and operative. Yarbrough v. Avant, 66 Ala. 526; Harvey v. Doe, 23 Ala. 637; Abernathy v. Boazman, 24 Ala. 189. The execution of the deed imports that the grantor intends to vest the title in his grantee, and to confer upon him the beneficial enjoyment of the property, so far as that result may be accomplished legally. Because of the rule of law which invalidates the deed as against the adverse holder, it cannot operate to authorize the grantee to sue in his own name for the recovery of the land from such adverse holder. But this rule of law does not stand in the way of the grantor authorizing the use of his name in a suit for the recovery of the property. Courts of law long ago recognized the right of a transferee of a chose in action which was not assignable under the common law, to use the name of the transferrer in a suit thereon. Though such assignment was void as to the debtor, yet it bound the creditor to permit the use of his name by his transferee for the enforcement of the demand. On like considerations, it has been held that a conveyance of land adversely held authorizes the grantee therein to use the grantor's name in a suit for the recovery of the property. The question was presented in the case of Steeple v. Downing, 60 Ind. 478-487. It was there said: "We are satisfied, both upon reason and authority, that where one conveys land to another, which at the time is in the adverse possession of a third person, whereby the title cannot pass as against the party thus in possession, the grantor impliedly authorizes the grantee to use his (the grantor's) name, in an action to recover the land from the party thus in the possession thereof." The result of the decisions has been stated to be that the deed is construed to be a power of attorney authorizing the grantee to use the grantor's name, as plaintiff in ejectment, to recover the lands, even against the will of he latter. Sedg. & W. Tr. Title Land, (2d Ed.) § 190. The recovery inures to the benefit of the grantee, though the action is prosecuted in the name of the grantor. Brunson v. Morgan, 86 Ala. 318, 5 South. Rep. 495. It is a general rule that there can be no recovery in favor of the plaintiff on the record after he has released or transferred his claim to the defendant. This court has recognized...