12 Ky. 390 | Ky. Ct. App. | 1822
THIS is an ejectment, brought on the demise of John Kincaid, who, on the trial, gave in evidence the act of assembly of this state regulating the town of Lancaster ; and it was admitted, that the claim of Bu. ford, referred to in the act, originated under the laws of Virginia. Next, a deed was given in evidence from the trustees of Lancaster to Elijah Sartan, dated 9th of April 1811, for the lot in contest; also,'a deed from; Elijah, Sartan to Lewis Haller, dated 27th March 1816. Next, a deed from Lewis Haller to John Harm, dated the 14th February 1815. This last is a deed of trust, intended to secure the payment of a sum of money, and conditioned that if the money was paid on a certain day, the deed should be void; but if not then.
The plaintiff then proved by parol, that the sale under the deed of trust from Hann to Bledsoe, was made on the premises, after the previous advertisement re. quired by the deed of trust; that several attended, and the sale was fair, and there were other bidders besides Bledsoe, who seemed to be active in the sale, and had written the advertisement; and to whom, as the wit. nesses understood, Hann had assigned the note of Haller, which the deed of trust was given to secure. One of the plaintiff’s witnesses, being interrogated, said, that he had taken a lease of the premises in question, from Aldridge, the defendant below, and occupied it under him from the 1st of March 1817, until the last of December or first of January following, during which, the sale under the deed of trust took place; that his lease was for one year, but he moved and left the premises vacant, and the next day Bledsoe took possession, but was expelled by a warrant of forcible entry and detainer, brought at the suit of Aldridge.
The court, on this state of the evidence, without its appearing how the defendant held the lot in question, instructed the jury, on the application of the plaintiff below, that the evidence showed title in the lessor of the plaintiff. This instruction is opposed, on the. ground that the conveyance by deed of trust from Haller to Hanu, is dated before the deed from Sartau to Haller, and therefore Haller had no title to convey; and it is further contended, that it being shown that Aldridge, the now defehdant, was in possession by his
2. We are of opinion, that the title subsequently acquired by Haller, did inure to the benefit of his vendee, and Haller must be construed as taking the deed for his benefit. The only objection to this, is, that estoppels must be mutual, and cannot operate against a stranger, to prevent his showing the truth, viz. that Haller had no title. But the application of the doctrine to Aldridge, does not estop him from showing the truth, more than a deed from Haller, after the reception of his deed from Sartan, would debar him from saying that Hann had not got the title which Haller held. Whether the deed to Haller was made before or afterwards, it was, as to Aldridge, “ res inter alios acta,” and does not operate as* an estoppel. It was
As Aldridge was in possession, claiming under this deed, at the time of the sale under the deed of trust from Hann to Bledsoe, and from Bledsoe to the lessor of the plaintiff, it was contended in the court below, and is insisted upon in this court, that lie held such an adverse possession, at the time of these sales, as precluded their operation, and prevented the title from passing.
3. It is a principle or the common law, arded and af firmed by a statute of Virginia, passed in 1(2 Lilt. 569,) that land was not the subject of sale, unless the vender had the possession, or where, there was an adverse possession, and that a conveyance under such circumstances passed no title. But the legislature of this state, with regard to titles derived from the laws of Virginia, has thought proper to change this ruleof property, by providing, “ that no person purchasing or procuring an interest in any legal or equitable claim to land, held under the land laws of Virginia, now the laws of this state, shall be precluded from prosecuting or defending said claim, under such purchase or contract; neither shall any suit or suits brought to establish such purchase, or make good the title to sudi claim, be considered as coming within the provisions, either at common law or by statute, against champerty or maintenance, any law to the contrary notwithstanding.”
It may be contended, that as this law relieves such cases from the laws against champerty and mainte nance, it was only intended to ward off the penalties in cases where a nurchaser maintained the. suit, and
It has been contended, that the deed of trust from llaller to Hann ought only to he construed as a mortgage, although it gave express authority to sell, and that the intervention of a court of equity was necessary to authorise a sale- We cannot conceive this objection entitled to any weight. Suppose the deed is to be construed as a mortgage, it still, after the condition is broken, passes the complete legal estate, to which iegál remedies are attached; and it is competent for the mortgagee to sell and convey his interest, as well as other holders of estates at law, and his vendee could support an ejectment for the land. It will be time enough to decide this question, on a hill filed to redeem.
The defendant below offered to give in evidence a grant from the commonwealth to James Speed, covering the lot in controversy; but the court refused to
The patent was, therefore, properly rejected, and we discover no error in the judgment of the court below. It must, therefore, be affirmed with costs.