13 Ala. 818 | Ala. | 1848
The main question presented upon the record is, whether the evidence of title as shown by the record, is sufficient to warrant and sustain the defence set up by the defendant below. The plaintiff produced a deed to himself from Stroud McLemore, who held a patent from the government of the United States. He has the legal title to the premises, unless there is something shown in the record which would avoid his conveyance. It is insisted by the counsel for the plaintiff in error, that the deed from the patentees to Driver was void — 1. Because Cawsey, at the time of the execution of this conveyance, was in adverse possession of the land. 2. Because, at the time of the execution of the said deed by Stroud & McLemore, a bill in equity was pending, and had been served upon them, at the suit of Cawsey, to obtain title, and that the deed was received by Driver, pending this suit in chancery, which defendant below insisted should avoit it.
. The defendant below has not, nor is it pretended he ever had, any writing, showing he had an interest in the premises sued for. The bond under which he claimed, was executed by Stroud & McLemore to his brother, not to him, and this bond was transferred to Driver, who surrendered it to the obligors therein named, upon obtaining the deed. The defendant below, then, having no claim or color of title, did not hold adverse to to the title of the plaintiff below. Indeed the proof clearly shows, the bond under which he claimed an equity was transferred to Driver by his consent. He cannot therefore insist, that his possession .shall avoid the deed of Driver. See the case of Hinton v. Nelms, decided at this term ; also, Wright v. Swan, 6 Porter’s R. 84, and cases cited.
The conveyance to Driver, not being void by reason of •the possesion of Cawsey, a court of law cannot avoid it by reason of its execution pending the chancery suit. That court looks alone to the legal title, leaving the parties to settle their respective equities, and if Cawsey desired to prevent
In any aspect in which we can view this case, we cannot regard it otherwise than an effort in a court of law, to set up a mere equity to defeat a recovery upon the legal title, and to allow the defence, would be to break down the well established distinction between the jurisdiction of courts of law and equity, and would introduce a scene of confusion in the administration of justice most disastrous in its consequences.
The circuit court did not err therefore, in charging the jury, that if they believed the proof, the plaintiff was entitled to recover, for this would have been the proper judgment upon a demurrer to the testimony.
. There was no error in refusing to allow the defendant to read the bill which he had filed, in evidence to the jury. The evidence Was of his own creation, and for aught the court may know, fitted up for the occasion. We know of no rule which would justify it.
We are not able to see any error in the record, and the judgment of the circuit court is consequently affirmed,
