73 Ala. 537 | Ala. | 1883
— The present controversy arose on petition for su/persedeas of writ of possession. The petition avers that, in January, 1881, suit was brought in the name of Hamp. Cook, the appellee, in the Circuit Court of Butler county, against Johnson, the petitioner, for the recovery of a small lot of land in Greenville; said Hamp. Cook being at the time, and for many years before, a resident of Florida. The petition then avers that Hamp. Cook did not authorize the bringing of said suit, had no knowledge of its bringing or pendency, and never approved or ratified its prosecution. It avers that Cook set up no claim to the property ; that about 20th May, 1881, said suit came on to be tried, and there was verdict and judgment for the plaintiff, on account of a defect in Cook’s conveyance, notwithstanding Johnson and those under whom he claimed had bought and paid for the lot. Only Cook and Johnson were parties to the suit.
The petition then avers that on the 2nd day of June, 1881, in consideration of 'fifteen dollars paid May 16th, 1881, and six dollars then paid, Cook executed and delivered to defendant, Johnson, a full release and discharge from said judgment, and a further release and conveyance of said lot to said defendant. The release and conveyance is made part of the petition, and, after many recitals, contains this clause:-“I, Hamp. Cook, do' hereby acknowledge full satisfaction and settlement of said judgment in said case, and hereby release and forever discharge the said Claiborn Johnson, his heirs, executors, etc., of and from any further liabilities whatever, on account of said judgment. both as to the damages and the possession and title of said lot; and also hereby grant, bargain, sell and convey, and release whatever right, title, or interest I may now have, in law or equity, or which may result, from the.existing state of things, in and' to said lot, and all right of possession, or the execution
In answer to said petition and motion to have said judgment and recovery in ejectment entered satisfied, and the writ of possession annulled and restrained, it was averred that the suit was procured to be brought by one A. F. Posey, who employed the counsel in the case. • It was not claimed that Coolc was consulted, or assented to the suit. It was brought for Posey’sbenefit, although he was not named in the record, and he claimed the right to control it. The following is a copy of the deed under which he claimed :
“The State of Florida, \ Escambia county. \
Know all men by these presents, that I, Hampton Cook, of said State- and county, for and in consideration of the sum of five dollars, to me in hand paid by A. F. Posey, of Butler county, Ala., the receipt whereof is hereby acknowledged, have remised, released and quit-claimed, and by these presents do hereby remise,, release and quit-claim to the said Posey, all my right, title and interest in the following described property, to wit: The north half of lot No. 6, containing one-half of an acre, purchased by me of Jno. W. Mallett, and formerly known as the “Kite lot,” lying in the south-west portion of .the city of Greenville, Ala., with all the appurtenances thereon.” Dated September 18th, 1880, and signed Hampton Cook. Each of the papers described above was signed with the mark of the grantor, and each has two subscribing witnesses. Hampton Cook, it is shown, can neither write nor read. It is one of the admitted facts, that when this deed from Cook to Posey was executed, Johnson was in the adverse possession of the lot, claiming it as-his own.
On the facts stated above, considering this case only as a controversy between Cook and Johnson, the only parties to the-record, there is strong, probably conclusive testimony, that Cook, after he recovered .his judgment, released to Johnson, for a valuable consideration, all right and interest he had in the recovery, and in the lot sued for. The language of the release and conveyance is very comprehensive and strong. So far as Cook is concerned, there can be no question that Johnson showed himself entitled to' the relief prayed for in his petition.- — 2 Brick. Dig. 465-6, §§ 6, 7, 18. 19, 29, 33 ; Martin v. Tally, 72 Ala. 23; Moses v. Dade, 58 Ala. 211.
In the court below it was urged; that the judgment should
There is another important question in this case. It is an admitted fact in the record, as we have said, that when Posey obtained the quit-claim deed from Cook, Johnson was in possession of tlm premises, claiming title thereto, and claiming to hold in his own right. Under all our rulings, such conveyance is inoperative and void as against the adverse claimant in possession. — See Bernstein v. Humes 60 Ala. 582, ánd the authorities therein collected. ’Such deed is not void between the parties to it. As to them, and between them, it may be the foundation of a suit or defense. There is nothing which contravenes public policy, or violates positive law,, of which either of them can complain. If there is fault, they stand in jpa/ri delicto, and the conveyance being executed, the grantee may assert all legal rights against the grantor, to the same extent as if ho one had held adversely when the conveyance was made. "Very different, however, are the rights of him in adverse holding. The owner of the incumbrance, or superior legal title, if you please, may be unwilling to assert it. Both the common law and many statutes have declared that a mere right to prosecute an action can not be the subject, of bargain and sale. . And this rule of the common law, and these legislative enactments were called into being “for avoiding of maintenance, suppression of right and stirring up of suits.” If a mere right to sue for property adversely held can be purchased by a stranger, suit then brought in the name of the seller of such right, a recovery had, and when the defendant comes to adjust the matter of recovéry with the plaintiff in the action, he is met by the opposing claim of such stranger to the record, asserting that before suit brought he had purchased this right of action, and had himself prosecuted the suit to judgment, we submit, is not this a plain and palpable case of maintenance ? And can we permit such claim to prevail, on the asserted ground that he is the equitable owner of the judgment, and therefore the plaintiff of record can not control it ? ' Can an equity spring out of an act of maintenance? We hold, as the rule declares, that a conveyance of a mere right to sue for property, claimed and held in adverse right, is absolutely void as to such adverse holder, and as against him, it never, at any stage of the proceeding, acquires any force, legal or equitable. After the close and consummation of proceedings between the original parties, and the adverse holder is dispossessed, then the agreement of sale may
Reversed and remanded.