12 Ala. 165 | Ala. | 1847
1. The question at the outset of this case is, whether Jones was properly allowed to defend as landlord — it being admitted he did not stand in that technical relation to the other defendant — -and the plaintiff claiming as a purchaser at sheriff’s sale, of whatever interest Leith had in the premises. The plaintiff insists, the defendant under these circumstances is estopped from setting up any title whatever. We shall first consider whether the technical relation of landlord and tenant must exist to let one' claiming the title into the defence. Our statute of 1836, [Dig. 321, $■ 49,] is very general in its terms, and seems to have been intended to introduce the practice of the English courts in this respect. The act of parliament of the, 11 Geo. 2, ch. 29’. uses the term landlord in the same sense as our own statute, and the decisions under it are, that it extends not only to landlords properly so called, but also to all persons claiming title to the premises, consistently with the possession of the occupier, though no acts of ownership have been previously exercised by them. The question in all cases is, whether the party applying to defend as landlord, be himself interested in the event of the suit, or whether he be merely set in motion for the purposes of some other person.- [Steph. N. P. 1443.] It is evident from this, that the nature of the title which the plaintiff claims, must to some extent influence the action of the court in admitting a party to defend as landlord ; for instance, if in this case there was an unexpired tenancy in Leith, at the time of the application, and the plaintiff was willing to concede the ultimate title in Jones, the latter would have no interest to defend the suit.
2. But assuming the legal title to the land was in Jones by the assignment of the certificate, or that he claimed it to be so, then it is apparent Leith stood to him, or was conceded by those parties to stand to him, in the relation of a tenant at will, whose estate was determinable at pleasure.
In this relation, if our statute was out of the way, it is scarcely possible any court would allow a plaintiff in an ejectment suit, to obtain possession under the pretence that there
3. Having ascertained there was no error in allowing Jones to defend the suit, we shall inquire whether his title is preferable to that acquired by the plaintiff under the sheriff’s sale. In doing this, we need not examine his title, as it is considered to be the settled law in this State, that the title acquired by the entry of lands, although incomplete, is yet a legal title, and as such subject to sale under a judgment at law, Goodlet v. Smithson, 5 Porter, 245; Rosser v. Bradford, 9 Ib. 354.] It will be seen that -both the assignments of the certificate were executed some days before the lien of the judgment was operative, and therefore the only question on the merits is, whether these, or either of them, operated as a legal conveyance of the title. The only difference between the two is, that one has a seal, and the other has none, and the one with a seal transfers the certificate, whilst the other purports to convey the land. We have a statute, passed in 1812, which provides, “ that all certificates issued in pursuance of any act of Congress, by any of the boards of commissioners, register of a land office, or any other person duly authorized to issue such certificate, upon any warrant of survey, or to any donation or pre-emption claimant for any lands in this State, shall be taken and received as vesting a full, complete and legal title in the person in whose favor the said certificate is granted to the lands therein mentioned, and his, or her, or their assigns, so far as to enable the holder of such certificate to maintain any action thereon, and the same shall be received in evidence in any court in this State.— [Dig. 341, $ 157.] In Bullock v. Wilson, 2 Porter, 436, this statute' was considered as covering a receiver’s certificate of the entry of lands, but no question was raised as to the mode of assignment. In Masters v. Eastes, 3 Porter, 368, it was
4. The remaining question to • be determined is, whether this assignment is inoperative for the omission to register it. It is in view of this question, that we have omitted to place this decision on the ground that the assignment, independent of the statute we have referred to, was Operative as a conveyance. If regarded merely as a conveyance of the land according to .common law principles, it might be difficult to say it was
5. Without particularly examing all the other questions raised by the bill of exceptions, it is only important to say, that the other evidence of title was improperly admitted. We speak now with reference to the conveyance of the land which is without seal. This at least only showed an equitable title in the assignee, which did not enable him to defend this suit at law. Although this, and possibly too, all the other evidence for the defendant was entirely unnecessary, yet as it was improperly admitted, the judgment must be reversed. We understand the rule to be, that the admission of testimony irregularly, although it is merely cumulative, is sufficient to reverse a judgment.
Reverséd and remanded.