Pryor v. Butler , 9 Ala. 418 ( 1846 )

ORMOND, J.

We do not consider’it necessary, or proper, to examine any of the questions raised upon the record, except the one made by the fourth charge prayed for — that a conveyance of land is void, when the land is, at the time of the conveyance, held adversely by another. This was so decided by this court, in Dexter & Allen v. Nelson, 6 Ala. Rep. 68.

It is insisted here, that as Leake, and Pryor, had notice of the mortgage of the Bank upon the land, at the time of their purchase, their possession is not adverse, but consistent with the title derived under the mortgage. Leake purchased at a sale under execution, against Warren & Steber, the mortgagors, they being in possession at the time of the sale. Leake received the sheriff’s deed, and went into possession, after which he sold and conveyed to Pryor, who went into possession, and has remained in possession ever since.

It may be conceded in this case, that neither Leake or Pryor, can resist a recovery, against a purchaser at the sale made under the mortgage, having by their purchase, acquired only the interest of the mortgagor, and therefore placed in the same condition that he would be in, if the action'had been brought against him; but the admission will avail nothing here. The right acquired by Bullard, who purchased at the sale made under the mortgage, was a right to recover the lot by suit, if the possession was in another, and the possession was withheld. This right to sue, he could not transfer to another. It is an ancient doctrine of the common law, “ that nothing which lies in action, entry, or re-entry, can be granted over.” [Thomas, Coke, Litt. 99, 214, a.] Here, when the sale was made by Bullard to the plaintiff, the possession was, and had been, for some time previous to the purchase by Bullard himself, in another, who was in, under claim, and by color of title. It is perfectly clear, therefore, that the claim of Bullard was merely in “ entry,” and this we have seen, he could not transfer to another.

The fact that Pryor was present at the sale to the plaintiff, bid himself for the land, and did not disclose his title, (if such was the fact,) does not vary the case. No question arises here about the defendant’s title, whether it is good or bad, is a matter in which the plaintiff has no interest. It is at least a possession, and that is better than his, which has no legal validity at all.

This is decisive of the case. Let the judgment be reversed, and the cause remanded.