Dexter v. Nelson

6 Ala. 68 | Ala. | 1844

ORMOND, J.

Our first impression was, that the sale and conveyance of the land in this case was not void in consequence of the adverse possession of the defendant in error, as no statute similar to that of the 32 Henry 8, had been passed in this State. We are satisfied we were mistaken. The original simplicity of the common law admitted of no estate in lands which was not clothed with the immediate seizin and possession thereof. The ancient common-law mode of conveying lands was, by livery of seizin, and necessarily includes the idea of a sale of lands by one not in possession.

Lord Coke, commenting on the text of Littleton, that no entry could he reserved to a stranger upon a feoffment, says, “ here Littleton reciteth one of the maxims of the common law, and the reason hereof is for avoiding maintenance, &c., and, therefore, nothing in action, entry or re-entry, could be granted over.” [2 Thomas Coke, 99,214, «.]

The statute, [32 Henry, 8,] and which has been re-enacted, substantially, in most of the States, was not passed for the purpose of making void sales of land where the land was held adversely to the vendor, but to punish the parties concerned in it; the penalty being the whole value of the land. In a decision upon this statute, Montague, Ch. Justice, says, “In this point, the statute has not altered the common law, for the common law befox’e the statute, was, that he who was out of possession, ought not to bargain, grant or let his title; and if he had done so, it should have been void ; then the statute was made in affirmance of the common law,and not in alteration of it; and all that the statute has done is, it has added a greater penalty to that which was void by the common law before.” [Partridge v. Strange & Croker, 1 Plowden, 88.]

It is unnecessary to add other citations, as it is clear that the deed offered in evidence by the plaintiff, being made by one not entitled to the possession, was void.

Let the judgment be affirmed.