38 Ala. 135 | Ala. | 1861
A question meets us at the threshold of this case, which is fatal to the plaintiffs’ right of recovery on their. present complaint. At the fall term, 1857, the plaintiff obtained leave to amend his complaint, by adding the names of the three devisees of the land in controversy, as plaintiffs in the cause. The suit had been commenced in the name of Elijah W. Tarver, as executor of Benjamin P. Tarver, deceased; and the names added were William Tarver, James M. Tarver; and the said Elijah W. Tarver in his own right. The amendment, then, makes the case of an action to recover the possession of land, in the nature of an action of ejectment, (Codo, § 2209,) prosecuted in the name of the only surviving executor, suing in his representative capacity, conjoined with the names of the devisees of the lands in controversy; the will not conferring the title of the lands upon the ■executor. It needs no argument to show, that the rights’of the executor, as such, in the lands of his testator, are entirely-unlike those of the devisees of the fee. The devisees have the absolute property in the estate, subject to be defeated, in a limited class of cases, by the assertion of certain specified powers with which the legislature has clothed the executor. The respective rights of the parties cover no grounds in common; the rights of the one yielding to the extent that the other can be asserted. True, each may maintain an action of ejectment, to recover the possession of the lands;'but their several rights over the lands when recovered are fundamentally unlike.
' Our decisions have placed the right of the personal representative to maintain ejectment for the recovery of lands of his testator or intestate, mainly on the ground that such personal representative is entitled to the rents in arrear at decedent’s death, and to the after-accruing rents, as assets of the estate until distribution is made. — See Harkins v. Pope, 10 Ala. 493 ; Golding v. Golding, 24 Ala. 122; Patton v. Crow, 26 Ala. 426 ; Boynton v. McEwen, 36 Ala. 348.
This is an error, which, if the attention of the circuit court had been directed to it, would have justified the charge, that the plaintiffs could not maintain the action in their joint names. But the question was not made in the court below; and hence, the plaintiff has had no opportunity to perfect his pleadings by an amendment. — See Cox v. McKinney, 32 Ala. 466-7 ; Williams v. Agee, 30 Ala. 636. It thus becomes our duty to investigate the other questions in the record.
First: The deed from the Indian reservee to E. Corley & Co., after it received the approval of the president of the United States, clothed the grantees with such title as that they could maintain ejectment upon it. — Jones v. Mardis, 5 Porter, 327 ; Crommelin v. Minter, 9 Ala. 594 ; Haden v. Ware, 35 Ala. 149.
Second: The owner of an undivided interest in lands, having a legal title, may maintain a separate action of ejectment against one wrongfully in possession, and may recover to the extent of his ownership in the premises. Sawyer v. Fitts, 2 Porter, 9 ; Hines v. Greenlee, 3 Ala. 73 ; Bonner v. Greenlee, 6 Ala. 411; Chastang v. Armstrong, 20 Ala. 609.
It must be conceded, that the instrument by which the division of the lands was evidenced, does not confer on Mr. Tarver, or his executor, such right to the interests thus conveyed as that ejectment can be maintained on such title.
The question presented in’ the case of Ware v. Haden, was, in all respects, precisely like the question in this, record, if we leave out of view the fact that Mr. Tarver had died before the patent issued to him. — See, also, Iverson v. Dubose, 27 Ala. 418. "That case, then, is decisive of this, so far as to show'that the writing entered into on the division of the lands owned by E. Corley & Co. was ample •authority to the government of the United States to issue-a patent to Mr. Tarver; and, unless the prior death of Mr. Tarver brings the case under a different rule,! it further shows that the patent to Mr. Tarver divested the title and lright to maintain ejectment out of E. Corley & Co., and :leaves the plaintiff’s right of action resting on the patent.
The result of the principles above declared is, that before and at the time of Mr. Tarver’s death, he had and held an ownership and right, in and to the lands in controversy, which authorized a patent to issue to him “ in pursuanee of a lato of the United States’'; and when, after his death, the patent was issued in his name, it was not void, but the title inured to and vested in his heirs, devisees, or assignees, under the act of congress of 1836. — Schidda v. Sawyer, 4 McL. 184; Stubblefield v. Boggs, 2 Ohio St. R. 216 ; McArthur v. Dun, 7 How. (U. S.).262.
Our decisions, allowing, in this court, revivors in favor ■of both the administrator and the heir, in certain classes of ejectment' suits, '(resting, as they do, on statutes which ■rendered the introduction of that anomaly into our ■ jurisprudence necessary to-prevent injustice,) can have no application to a suit-commenced originally by the heir'or personal representative. — See State ex. rel. Nabors, 7 Ala. 459; Jordan v. Abercrombie, 15 Ala. 580; Ex parte Swan, 23 Ala. 192.
The judgment of <the circuit<court is- affirmed.;.