74 So. 339 | Ala. | 1917
Lead Opinion
— This was originally an action for forcible entry and unlawful detainer, and was transferred to the circuit court under a petition to try title as provided by the statute (section 4283 of the Code of 1907) by one claiming to have entered upon the land peaceably and under claim of title thereto.
“All my right, title, interest, estate' claims and demand both at law and in equity as well as in possession or in expectancy of, in and to all that certain farm,” etc. — Garrow v. Toxey, 188 Ala. 572, 66 South. 443.
It is insisted by the appellant that the defendant, Walker, is in no position to invoke the statute to try title: First, for the reason that at the time of his entry upon the land he did not do so under claim of.title, as the title was in the government; and, second, that even if he has title, he is not entitled to the immediate right of possession, for the reason that his father is.still living and has a life estate in the land which the said defendant inherited from his mother.
The judgment of the circuit court is affirmed.
Rehearing
NO REHEARING.
— It is suggested upon rehearing that the court did not take sufficient notice of the insistence of counsel for appellant, that the appellee was not authorized to try the title to the land under the statute for the reason that he entered by force, or if he entered peaceably, he forcibly withheld the land. We repeat that the record does not disclose such a forcible entry or forcible withholding of the land as to preclude appellee from the benefit of the statute for removal of the cause to the circuit court for the purpose of trying title.
It is next urged that the holding that the deed from Henry Weathers conveyed an expectancy was in direct conflict with the case of Derrick v. Brown, 66 Ala. 165. This point was so decided upon the authority of Garrow v. Toxey, 188 Ala. 572, 66 South. 443. We do not understand that the opinion in the case at bar, or the one in the Garrota Case, supra, held that the deeds considered were warranty deeds, as distinguished from a quitclaim, but, notwithstanding they may not have amounted to a warranty because qualified by the word “quitclaim,” still they expressly conveyed an estate in the land in expectancy. The holding in the Derrick Case, supra, merely is that the deed was a quitclaim, notwithstanding the use of the word in “expectancy” as well as in possession, but the court did not there hold that the deed did not or would not operate to convey the expectancy of the grantor, and said case is easily reconciled with the present holding. Indeed, the opinion in the Derrick Case, supra, in speaking of the conveyances, says:
“They conveyed no title other than that they owned, legal or equitable, in possession or in expectancy.’
Rehearing denied.