Whiteside v. Branch Bank at Decatur

| Ala. | Jun 15, 1846

COLLIER, C. J.

The objection to the declaration cannot áv&il. It is alledged that the plaintiff; on the 16th De-Oeinbéf, was seized in its demesne, as of fee of a certain tract Of land, (being that in question,) and on the day and year a-forésáifl, the defendant, with force and arms broke and entered iiito the same, and ejected the plaintiff therefrom, detaining thé possession, and taking the rents and profits to his Owii usé, &&: The defect is, that the. year in which the plaintiff was seized and evicted does not appear. After judgment, if not previously, it must be intended, that the 16th December must refer to that day in a year preceding the commencement Of th'é suit; the uncertainty, if any, cannot be more fatal thdh ’a mete blank as to time, and this would not authorize the reversal of a judgment rendered upon a verdict.

In. regard to the assessment of the damages, if they are excessive, the defendant should have asked a correction in the circuit court, or if the plaintiff refused to assent to this, he should have moved for a new trial. The authorities cited by the counsel for the defendant in error, upon this point, are so direct that it is not necessary to add any thing more.

In Doe ex dem. Davis v. McKinney and McKinney, 5 Ala. 719" court="Ala." date_filed="1843-06-15" href="https://app.midpage.ai/document/doe-ex-dem-davis-v-mckinney-6502080?utm_source=webapp" opinion_id="6502080">5 Ala. Rep. 719, we held, that the act of 1820, which provides that “ no other than the legal title to land, or other real estate, shall hereafter be sold or conveyed by virtue of any execution,” and that the equitable title shall be liable to the payment of debts by suit in chancery, and not otherwise, inhibited the sale of a resulting trust under an execution against the goods and chattels, lands, &c. of the cestui que trust and this although the defendant in execution was in the possession of the land. That case it will be observed is one in which the title was purely equitable, and is confessedly within the .statute.

In Land v. Hopkins, 7 Ala. Rep. 115, the defendant in execution was in possession of a lot,, under a deed executed on the 1st of April, 1837, by J. C. M. as treasurer of the commissioners appointed to sell lots in the town of Livingston, with covenant of warranty j in December, 1838, the defendant in execution bargained and sold the lot to a third person, to whom he delivered the possession. In June, 1838, the plaintiff obtained his judgment — -on the 5th of August, 1839, the lot in question was sold under a fieri facias issued thereon, and in October, 1840, a patent was issued by the United States to the commissioners, &c. for the tract of land of which the lot in question was a part: Held, that the judgment operated a lien upon the lot before the sale by the defendant in execution, and that the vendee of the latter might be dispossessed'by action at the suit of the purchaser at the sheriff’s sale. The case does not show it, but the inference is reasonable, that the commissioners had entered the land, or in some other mode acquired from the United States, an imperfect legal title previous to the issuing of the patent; and it may be, before the sale of the lot, in 1837. Be this as it may, the report does not explicitly affirm such to have been the fact, and we infer from the reasoning of this court, that it was not a point which influenced its conclusion. We said, f‘The restriction imposed applies only where the defendant has a mere equitable title. Here, Robb, a defendant in execution, cannot be regarded, as between himself and the plaintiff, as the mere occupant of the government land • nor can his possession be treated by the defendant as an occupancy by permission of the United States. His title, whatever might be its extent, was clearly legal; when it was shown that he was in-possession under a deed professing to convey the fee simple title — the plaintiff would-not be required to show, that the grantor in the deed had an interest to convey, nor will the grantee of Robb be permitted to show, that the title was in a third person, for the purpose of defeating the plaintiff’s action. It is unimportant whether Robb had a perfect legal title or not; his interest was a tenement or estate, either of which might be sold. The act of 1812, is express upon this point, and its meaning, thus far, is satisfactorily explained by the case of Jackson v. Parker, 9 Cow. Rep. 73.” This reasoning is decisive of the case at bar — here it may be said that the deed of the commissioners appointed to sell the real estate of Pettit, professedly, and in point of form, conveyed the legal title to Lewis. This being the case, the judgment of Lewis, or the purchaser at a sale under execution against him, is not bound to inquire into the character of Pettit’s title in order to acquire all the right of Lewis; nor shall Lewis, or one claiming under him, be permitted to defend an action by a purchaser at the sheriff’s sale, by showing that the legal title was in some third person, so as to defeat a recovery.

The fieri facias against Lewis, bound his title by relation, from the rendition of the judgment — the conveyance by deed of trust to Tarver, being posterior in point of time must yield to this lien. This deed being out of the way, the plaintiff had a clear- right to recover, and the charge to the jury, if not literally, is substantially correct. The judgment of the circuit court is therefore affirmed.