32 Ky. 68 | Ky. Ct. App. | 1834
Lead Opinion
Delivered the Opinion of the Court.
On the 80th of July and 2nd of August, 1831, the declaration <i.nd notice were executed upon the tenants in possession. On the 26th of July, 1831, Ann T. Sanders, the only lessor who had title, conveyed the land, by deed of mortgage, to Theobald and Davis. The title vested, immediately on the execution of the mortgage, in the mortgagees, by the terms of the deed, and was to revert, upon the payment of the money secured by it, in one year. At the time of the execution of the mortgage, the defendants were in the adverse possession of the liyid. The only questions which we shall notice grow out of the foregoing facts.
It is contended by the appellants, that the verdict and judgment for the appellee cannot be sustained, because the title was in Theobald and Davis at the commencement of the suit. There is no doctrine better settled than that the lessor of the plaintiff in ejetítment musí have title at the commencement of the suit. The service of the declaration and notice upon the tenants in possession, is the commencement of an action of ejectment. The demise laid in the declaration is dated in September, 1830, and three days after the demise, the ouster is alleged to have been committed. The counsel for the appellee insists that, title at the date of the demise and ouster, as laid in the declaration, is sufficient. In this he is clearly wrong. It is true, that the lessor must have title at the date of the demise. Cox vs. Joiner, 3 Bibb, 297. Anderson vs. Turner, 3 Marshall, 134. But these cases will not allow a plaintiff to lay his d.emise at a time when the lessor had title, and thereaf
If, then, the mortgage was effectual to pass the title of Ann T. Sanders to Theobald and Davis, the verdict and judgment cannot be sustained, unless the case of a mortgagor forms an exception to the general rule. That it does not, so long as the mortgage money is unpaid, was decided in Dougherty vs. Kercheval, 1 Mar. 52. There is no ground for the supposition that the mortgage was satisfied at the commencement of the suit. The plaintiff could not, therefore, succeed upon the demise of Ann T. Sanders, if the mortgage deed was effectual to pass the title from her. Whether it was or not, depends upon the question how far it ,was affected by the provisions of the act relative to champerty and maintenance, approved January 7th, 1824. At the date of the mortgage, the appellants were in the adverse possession of the land, and therefore, according to the plain letter of the first section of the act, the mortgage passed no title so far as it embraced land in the adverse possession of the appellants.- A mortgagee is, technically speaking, a purchaser. The act expressly forbids the purchase, “ by deed of conveyance, bond or executory contract,” of lands adversely possessed. If a mortgage was sustained as an exception, it would open a door to theeasy evasion of the whole statute. We are of opinion, that the mortgage passed no title to the mortgagees for the land adversely held by the appellants.
Under the foregoing view of the subject, the plaintiff had a right to recover upon the demise of Ann T. Sanders, unless her title had been destroyed by the said act of January, 1824.
The first section, in substance, declares, that no person shall sell or purchase, by deed of conveyance or executory contract, any title to land adversely possessed by a person, other than the vendor or vendee ; that every deed or contract executed in violation of this section, shall be void, and that no right of action shall accrue thereon.
The second section provides, that it snail not be lawful to contract, or to undertake to recover, or carry on any suit for the recovery of land adversely possessed, in consideration to have part or profit thereof; that the parties to such contract shall forfeit all right to the land claimed, and all right to maintain any action upon the title, and that the title shall vest in the commonwealth, and enure to the benefit of the adverse possessor.
The third section allows the adverse possessor “to shew or plead the sale or purchase of any pretended right or title in violation of the first section of this act, or any contract or agreement made in violation of the second section of this act, in bar of any action or suit, or claim founded thereon.”
The decision must turn upon the proper construction of the third section. Ann T. Sanders violated the first section, inasmuch as she sold by deed of conveyance land adversely possessed by the appellants. The consequence is, that the deed, under the first section, passed no title. It is void. Ann T. Sanders has not violated the second section. How, then, does the third section operate upon the case ? Does it bar her present action ? The great object of the legislature, by the act of IS24, was to prevent lands, adversely possessed, from being made the subject of contracts, except with the occupant. He might quiet his title; but strangers should not purchase over his head. Therefore, the first section made bom fide attempts to pass the title to such lands, void, unless in favor of the occupant; and the second section declared that a champertous contract should forfeit the title to the commonwealth, for the benefit of the occupant. The ’purchaser, under the first section, could neither maintain an action upon his deed, nor contract, against the vendor or occupant, because his deed and contract were, by the terms of the act, declared to be void. The vendor, violating the second section, could not, thereafter, maintain an action upon his. forfeited title, (con- . ceding, for the present, that the forfeiture could be enforced as contemplated by the act,) and the purchaser could not, because no title could vest in him under the deed. Under tiie first section, as the title was not for-
The whole argument in favor of the destruction of Ann T. Sanders’ right or title, rests upon the meaning of the words “founded thereon,” as used in the third section. The legislature declare their will, to bar certain actions, suits and claims founded on certain things. What are they P The third section gives the answer, to wit, all actions, suits or claims founded on “the sate or purchase of any pretended right or title in violation of the first section, or on any contract or agreement made in violation of the second.” This answer, given in the words of the law, is incorrect according to the argument on the other side, .because, as it is contended, the word “ thereon” refers to its immediate antecedent, and that antecedent is il title or sight” and- hence the answer
The meaning of the third section is this — all actions or claims growing out of (would perhaps have been a better expression than founded thereon,) sales, purchases, contracts or agreements made in violation of the first and second sections of the act, shall be barred and set at nought, by shewing or pleading the illegality of the sales &c. out of which, or upon which, the right attempted to be asserted is supposed to grow or to be founded. That provision of the third section which makes the defence consist in shewing the illegality of the sales, contracts &c., in connection with the whole object of the statute, proves that the third section was added, through abundant caution, to give effect in practice to the two first sections, by pointing out the mode of defence ; and the provision made in the third section for a discovery, is confirmation, that the only object of the third section was to,point out the proper course to render the two first sections available to the adverse possessor of the soil. '
We have deemed it ^proper to state thus much, because of the importance of a proper construction of the third section of the act of 1824, and because of the division of the court upon the point, in the case of Wash vs. McBrayer, 1 Dana, 569.
We are, therefore, of opinion, that the act of 1824 interposes no obstacle to the lessor’s right in the present case ; and as the other questions were correctly decided by the circuit court', the judgment is affirmed, with costs.
Concurrence Opinion
concurring in the foregoing decision, added the following explanatory remarks.
It was intimated in my dissent, in the case of Wash vs. McBrayer, that a bona fide mortgage was not a sale or purchase of land, within the true intent and meaning of the third section of the act of 1824 ; but as, according