Salter v. Fox

67 So. 1006 | Ala. | 1915

McCLELLAN, J.

(1) Statutory ejectment,' by appellees against appellant. The deed from Nancy Fox and her husband, G. W. Fox, to Fulton Snow, of date December 9, 1904, effected to reserve in Nancy Fox the use and enjoyment, the possession, of the land during her life, thereby postponing the right to possession of the land until her death.—Abney v. Moore, 106 Ala. 131, 135, 18 South. 60. In consequence, the conveyance of Fulton Snow and wife to G. W. Fox, of date February 10, 1906, operated to vest the title in G. W. Fox, subject to the stated reservation of possession in Nancy Fox. In order for a plaintiff to prevail in ejectment the right to the possession, at the time suit was instituted, must be in the plaintiff. Ejectment is a possessory action. Where two or more plaintiffs seek the recovery of the possession of lands, all must be entitled -to recover, else none can recover.— Whitlow v. Echols, 78 Ala. 206, 211; Dake v. Sewell, 145 Ala. 581, 585, 39 South. 819. G. W. Fox was without right to the possession of the land in suit; that right being in his co-plaintiff only. Hence, G. W. Fox was not entitled to recover; and he, being due to fail, the defendant was entitled to the general affirmative charge requested by and refused to him. Section 3839 of the Code of 1907 has not changed the rules to which we have adverted. There is nothing in that statute disclosing a legislative intent to allow persons not entitled to the possession to recover in ejectment or to permit some, less than all, of the plaintiffs to prevail. The effect of the statute amended in the codification of 1907 is illustrated in the cases of Grant v. Nations, 172 Ala. 83, 55 South. 310, and Nichols v. Nichols, 179 Ala. 611, 60 South. 855, among others.

There is no merit in the other errors assigned and urged in brief for appellant.

(2) Charge 2 was patently faulty, in that the conclusion thereof was predicated of a mere possession, not an adverse possession.

The judgment is reversed, and the cause is remanded.

Reversed and remanded.

Anderson, C. J., and Sayre and de Graffenried, JJ., concur.