13 Ala. 161 | Ala. | 1848
On a trial of the right of property levied on, and claimed by a stranger to the execution, the only issue is, whether the property is subject to the execution ; hence the statute of limitations can never be invoked on such a trial, unless for the purpose of showing an indefeasible right in the claimant to the property ; or by the plaintiff in execution, to show that the title of the claimant is divested, and vested in the defendant in execution, by the uninterrupted possession of the chattel, adversely to the title of the claimant, for a period of time that will, by statute, give title.
The statute of limitations, when applied to real estate, or to personal property, operates not only by w.ay of barring the remedy for the recovery thereof, but acts directly on the title, and vests in the possessor, when his possession has been adverse, and uninterrupted, for the space of time required by the statute, an indefeasible title. See 2 Ala. R. 561; Shelby v. Gay, 11 Wheat. 361; Brent v. Chapman, 5 Cranch, 358. Hence it would follow, that if the title of the claimant depended on his possession, and this had been adverse to the title of the defendant in execution, and this possession had continued for a time sufficient to bar the defendant of all remedy for the recovery of the slaves, before any lien was created on them, the title of the claimant would be absolute, and indefeasible to the slaves. The defendant, by virtue of his title, could not recover them, or divest the title of the claimant; nor could a creditor of his, or any one else that claimed by, or through, or in consequence of the title of the defendant in execution. But this is not the character of the claimant’s title ; he claims the slaves by virtue of a fraudulent bill of sale, executed by the defendant in execution, in fraud
Such a possession cannot be the foundation of a title by the statute of limitations; therefore there is no- error ill the charge given, or in refusing to give the charge requested. The judgment of the circuit court is consequently affirmed.
The second section of the- statute of frauds enacts, that every gift, grant, or conveyance of lands, tenements, hereditaments, goods or chattels, &c., by writing or otherwise, had, or made, and contrived of malice, fraud, covin, collusion or guile, to the intent or purpose to delay, hinder, or defraud creditors of their just and lawful actions, suits, debts, accounts, damages, penalties, or forfeitures, shall be,