55 So. 310 | Ala. | 1911

Lead Opinion

McCLELLAN, J.

Statutory ejectment. . From a judgment for defendant, plaintiffs appeal.

An essential (to their recovery) link in the chain of plaintiffs’ asserted title to the land in question is the deed from William A. Evers to Lee White, of date March 2, 1907. The testimony shows, without dispute, that on that date and prior thereto the land in controversy was held, adversely, by the McGimseys (defendants), and “that neither of the plaintiffs, nor said Lee *86White, their grantor, nor the said William A. Evers, grantor of the said Lee White, had been in possession of the property since the 7th of September, 1903. * *

In the Code of 1907, which became effective after the deed from Evers to White was executed, the following provision was, in section 3839 of that codification, added to section 1530 of the Code of 1896: “Action in the Nature of Ejectment. * * * This action must be brought in the name of the real owner of the land, or in the name of the person entitled to the possession thereof, though the plaintiff may have obtained his title thereto by a conveyance made by a grantor who was not in possession of the land at the time of the execution of the conveyance thereof. * * * ” The quoted provision of the statute (section 3839) is without force to affect the rights of the defendants, who held adversely when the conveyance was executed. — Davis v. Curry, 85 Ala. 133, 4 South. 734; Carr v. Miller, 161 Ala. 658, 49 South. 802.

By express limitation in Code 1907, § 10, that codification did not affect any defense existing at the time it became effective. In Skains v. Barnes, 168 Ala. 426, 53 South. 268, consideration was given the term defense, employed in this section and in section 95 of the Constitution. The law in force and effect when the conveyance from Evers to White was executed (March 2, 1907) rendered that conveyance void, an utter nullity, as to these defendants. — Dexter & Allen v. Nelson, 6 Ala. 68; Harvey v. Carlisle, 23 Ala. 635; Bernstein v. Humes, 60 Ala. 582, 31 Am. Rep. 52; Davis v. Curry, 85 Ala. 133, 4 South. 734; Mahan v. Smith, 151 Ala. 482, 44 South. 375; Carr v. Miller, 161 Ala. 658, 49 South. 802.

The legal result, protective of the rights of the adverse holders, was a defense within the mentioned limi*87tation. — Code, § 10; Bridges v. McClendon, 56 Ala. 327. If the statute (section 3839) was susceptible of a construction that would abrogate the common-law doctrine before stated, that consequence would not have been affected by the establishment, as appellants contend was done by that section, of a mere rule of evidence. If the statute was given that construction, and was applied here, the effect would be, obviously, to validate, as against these defendants, a conveyance that, when executed, was void as to them. A legislative effort similar in principle to that was pronounced constitutionally invalid by this court in Alabama Life Insurance Company v. Boykin, 38 Ala. 510.

Accordingly, in no event, under this record, could the plaintiffs recover in statutory ejectment; and, in consequence, the errors assigned were, if errors, innocuous to plaintiffs.

The judgment of the court is affirmed.

Affirmed.

Simpson, Mayfield, and Sayre, JJ., concur.





Dissenting Opinion

McCLELLAN, j.

An esteemed practitioner in this court has very kindly called our attention to the fact that this decision is immediately opposed to the proposition stated in the first headnote, in the report of Witherington v. White, 165 Ala. 316. Having been delivered at this term (April 11th, 1911), Grant v. Nations is still within the control of the court. The court has again fully considered the ruling in question; and thereupon re-affirms the ruling in Grant v. Nations and overrules, in this particular, Witherington v. White, 165 Ala. 316.

D'owdell, C. J., and Anderson, Sayre, and Somerville, JJ., concur.





Dissenting Opinion

SIMPSON, J.

(dissenting.) — It is the opinion of th¿ writer, in which Mayfield, J., concurs, that the change made by section 3839 of the Code of 1907, affects only the “form of the remedy.”

Section 10 was first changed in the Code of 1896, by the addition of this clause — “But this section does not apply to changes in forms of remedy, or defense, to rules of evidence, nor to provisions authorizing amendments of process, proceedings or pleadings in civil causes.”

This court has held that “A conveyance of land adversely held authorizes the grantee therein to use the grantor’s name in a suit for the recovery of the property; and the grantor can not prevent such use of his name by the grantee.”- — Pearson v. King, 99 Ala. 126, 129.

So the only change wrought by section 3839 is to authorize the vendee to bring suit in his own name in place of that of his grantor, which is clearly the “form of the remedy.” It does not affect any “existing right, remedy or defense,” but only the form of it. His rights are the same, he has the same remedy, to-wit, by action in the nature of ejectment, and the results are precisely the same, whichever form of remedy is used.

We therefore think that the rule declared in Witherington v. White et al., 165 Ala. 319, is correct.