27 Ala. 582 | Ala. | 1855
The defendant claimed the land in this case under a purchase made at a sale by the coroner, in virtue of an execution against Thomas H. Cowan and another. The land was levied on, as appears by the recitals in the deed, as the property of said Cowan, — was sold as his property, and conveyed by the coroner to Woodall, the purchaser, who conveyed to Gantt, the defendant.
The plaintiff also claims the same lot by conveyance from Thomas H. Cowan, through mesne conveyances to himself. The case, therefore, is a very plain one. As both parties claim through Thos. H. Cowan, the defendant by purchase under execution, they admit the title of Cowan, and there was no necessity for proof of title beyond their common vendor. The coroner could only sell a legal title; and the acceptance of a deed under the purchase, and relying upon it as evidence of title, was an admission by the defendant that Cowan was seized of a legal title. The only inquiry, then, was, which of the parties had obtained the legal title from such common vendor. That the plaintiff claimed by quitclaim deed, does not alter the principle, unless the party claiming to hold by a subsequent conveyance from the same grantor should be able to prove that such grantor acquired a title in the meantime superior to that conveyed to the plaintiff. Nothing of the kind is shown here : and as the charge which the court gave properly presented this question to the jury, the charges asked by the defendant, which conflicted with it, were properly refused.- — See Brock v. Yongue, 4 Ala. 584; Pollard v. Cocke, 19 ib. 188, and cases there cited; Seabury v. Stewart, 22 ib. 207.
The law will refer the possession of the defendant to the title which he sets up for its protection; and as he claims under a title derived from Cowan, the plaintiff’s vendor, and holds possession under that title, he cannot be allowed to say that Cowan had no title, but that it is in a third party, with
Judgment affirmed.
