Lowery v. Baker

141 Ala. 600 | Ala. | 1904

McCLELLAN, C. J.

The holder of a certificate of a homestead entry in possession of the land, cannot defend against an action of- ejectment brought by the grantee in fee of the United States, whether plaintiff’s patent was issued before or after the issuance of the certificate. Section 1813 of the Code of 1896 is not intended to operate, nor is it competent for the legislature to make it operate to pass the title of the General Government by such a certificate. — Knabe v. Burden, 88 Ala. 436.

That title to the land involved in this action passed by the patent in evidence into Mrs. Baker, and had she been the plaintiff here the general charge might well have been given in her favor. So, too, her grantee by valid deed suing for the land would he entitled to the affirmative charge. But this plaintiff, though claiming as her grantee and showing a duly executed deed from her, was not entitled to recover, because the evidence showed that at the time she made that deed the land was in the adverse possession of the defendant. — Murray v. Hoyle, 92 Ala. 559; Probst v. Bush, 115 Ala. 495.

The circuit court erred in giving the affirmative charge for the plaintiff.

Reversed and remanded.