Coleman v. Hair

22 Ala. 596 | Ala. | 1853

PHELAN, J.

It is not important to consider, in this case, whether, admitting that tbe deeds in trust, under which be derives title, are fraudulent on their face, Hair’s possession of tbe land in controversy is adverse in respect to Myer, tbe purchaser at tbe sheriff’s sale, or such as can ripen by lapse of time into a good title against him.

Whether this be so or not, it is clear, beyond dispute, that tbe possession acquired by Hair under bis purchase from Jackson, who purchased at the trust sale, if acquired bona fide, is such a possession as cannot be taken away by strong band, without tbe commission of a trespass; in other words, it cannot lawfully be taken away, except by suit.

Tbe sheriff could lawfully sell under tbe levy of tbe attachment, and tbe judgment consequent upon it; and tbe purchaser, if there was no one in possession, or only a mere trespasser, would acquire tbe right to go and take possession, or, if resisted by a mere trespasser setting up no claim, might vindicate that possession by force.

But if, at tbe time of tbe sale by tbe sheriff, there was any one in possession, claiming bona fide to bold in bis own right, whether by color of paper title or otherwise, tbe sale of tbe sheriff could not affect that possession, but would convey a right of property only, connected with a right of possession, which could only become possession itself by means of an action at law. In such a juncture, the law will allow neither a sale of this right, nor the assertion of it by strong hand. The first would lead to maintenance, and the last to violence and breach of the peace.

For authorities in support of the foregoing rules of law, see Dexter v. Nelson, 6 Ala. 68; Abercrombie v. Baldwin, 15 Ala. 863; Pryor v. Butler, 9 Ala. 409; Herbert v. Hanrick, 16 Ala. 581.

Tried by these rules, the charge of the court below was proper, and the charge asked by plaintiff was properly refused.

Let the judgment below be affirmed.