Brock v. Yongue, 4 Ala. 584

Brock v. Yongue

4 Ala. 584 | Ala. | 1843

ORMOND, J.

This was an action of trespass to try title. The plaintiff claimed under a sale by execution. It is very certain that the plaintiff in ejectment must recover by the strength of his own title; if that is not sufficient to enable him to maintain the action, it is a matter of profound indifference to him what the title of the tenant in possession is. The charges moved for, therefore, which are based on the supposed insufficiency of the title of the defendant, were properly refused.

In the charge given, however, the Court erred. The substance of the charge is, that the plaintiff was bound to shew a regular chain of title from the United States down to the defendant in execution, at the time of the rendition of the judgment. As it respects the title of the defendant in execution it was only necessary to show that it was a legal title, subsisting in the defendant at the rendition of the judgment. Such as it was, it passed to the purchaser by the sale under the execution.

It is, however, insisted that this Court will not reverse because it appears from the record that the judgment under which the plaintiff derives his title had lost its lien by a writ of error having been sued out and a bond given to supersede the execution, and that the defendant’s title accrued while the writ of error was pending, and before the affirmance of the judgment.

It is true that this Court will not reverse a judgment, though the Court may have erred in its charge, where it is clear from the entire record that the plaintiff never can recover, and such *588would be the consequence of the facts here supposed, as was held by this Court in the case of Campbell v. Spence, at the present term. It appears, however, that there was some controversy about the bond executed to obtain a supersedeas, and without intending to intimate that the fact that the bond was taken by a deputy clerk, or sent to this Court with the, record, would vary the case, it is sufficient that these questions are contested, to prevent the application of the rule above stated. A proper case for its application would be one where the matter relied on to affirm the judgment, the error of the Court notwithstanding, was uncontroverted.

Let the judgment be reversed and the cause remanded.