| Ala. | Jun 15, 1850
It is not necessary to decide, as the case now stands, whether Thomas Jennings, jr., had such a title to the land in controversy., as could be sold under an execution at law; for if w.e were to admit that the possession of Thomas Jennings,.sen’r, until his de.ath, under his bond for titles from Osborn Yougblood, and his devise to his son Thomas Jennings, jr., gave the latter such an, estate as could be sold at law, still, the plaintiff is met with the fact that the evidence discloses a superior outstanding legal title in.another,, and there is not shown to, exist any relation between, the plaintiff .and the defendant that would .prevent, the latter from.insisting on.such.outstanding title, to prevent a recovery. The principle-of law ;is now too well settled to be, controverted, that a. defendant in .ejectment may-show. an outstanding legal title in another .to defeat a recovery by 'the plaintiff, unless the defendant- is estopped from some act done by him, or from some relation existing between him
Applying this principle of law to the case before us, the judgment must be reversed, for it is manifest that the evidence shows an outstanding title in another, superior to the title of the plaintiff. Both the plaintiff and the defendant claim under Young-blood, who derived his claim from Carswell, who derived his title from the Indian reservee. The father of Thomas Jennings, jr., held the bond of Youngblood for titles, and this was his only title. Now, whether the legal title be in the Indian reservee, Carswell’s heirs, or in Youngblood, is wholly immaterial, for whether in the one or the other, it is superior at law to the title of the plaintiff, and consequently he cannot recover. But it is contended that this question was not made in the court below, and, therefore, it should not be insisted on here. The answer to this is, that the charge of the court to the jury, when applied to the evidence contained in the record, was erroneous, and we are bound to pronounce it so. The charge was, that if the plaintiff had proved a judgment against Thomas Jennings, jr., and a sale by the sheriff, and a deed from him to the plaintiff and that Thomas Jennings, sen’r, had devised the land to his son Thos. Jennings, jr., who was in possession at the time of the levy and sale, that the plaintiff was entitled to recover, unless the defendant had shown a perfect chain of title from the government, and that such a title had not been shown by the defendant, if one of the links was a bond for titles. This charge assumes that the defendant could not resist a recovery, unless he showed a superior legal title in himself, and so the jury must have understood the court. But we have seen that the defendant may invoke the aid of a legal title outstanding in another to protect his possession, and the evidence clearly shows such an outstanding title. The court, therefore, erred in the instructions given, and the judgment must be reversed, and the cause remanded.