60 So. 855 | Ala. | 1913
The common-law doctrine of champerty concerning conveyances of land adversely held, as interpreted in this state, did never amount to much; for the champertous deed has been construed to be a power of attorney authorizing the grantee to use the grantor’s name, as plaintiff in ejectment, to recover the lands, even against the will of the latter, and a recovery, though prosecuted in the name of the grantor, without more, inures to the benefit of the grantee.- — Pearson v. King, 99 Ala. 125, 10 South. 919; Carr v. Miller, 161 Ala. 658, 49 South. 802. The doctrine has now been abrogated by statute (Code, § 3839), but it has been held that whatever of virtue or vice there was in it still sticks to conveyances executed while it was of force. —Grant v. Nations, 172 Ala. 83, 55 South. 310; Curtis v. Riddle, 177 Ala. 128, 59 South. 47. It is obvious that our adaptation of the doctrine at its best, or worst, put no real obstacle in the way of a recovery by the grantee. But the grantee in this case has acquired possession of the land, without fraud or force it must be presumed, and is defending against the suit of one who purchased in subordination to the mortgage title under which defendant claims. It is not pretended that the mortgage was affected. So then, conceding that the mortgagee’s conveyance to defendant, having been made prior to our repealing statute, was champertous, though on the facts this may be open to grave doubt. (Tutwiler v. Atkins, 106 Ala. 194, 17 South. 394), but holding, as we must in view of our previous decisions, that defendant, if he were out of possession, might use the name of his grantor to recover against plaintiff if she were in possession, what reason can there be why the defense should not be allowed? In the situation shown the policy and reason of the law of champerty will not be served by a temporary denial of the defendant’s title.
Affirmed.
