Doe ex dem. Nickles v. Haskins , 15 Ala. 619 ( 1849 )

COLLIER, C. J.

1. The first charge to the jury was doubtless induced by the supposition that more than ten years having elapsed previous to the institution of the suit, after the execution of .the bond to convey title and the defendant’s possession under it commenoedy»fch$-aet of February, 1843, operated a bar to a recovep"M"geond section of that statute is as follows: i!"^l[rasf^«^covery of lands, tenements, or hereditam&ntitem thiatfB?ate, T&all be brought within ten years after t"cr^l^PtheJo^y^ of action, and not after : Provided, tearsl^rall^wedunder both sections of this act, for iniMts,j"^ cojffirt, insane persons, and lunatics, after the termWtfen^fl&roeir disabilities to bring suits.” By the proviso to The first section, it is declared, “ that no suit shall be barred by the operation of this act, within five years from its passage.” Clay’s Dig. 329, $ 92, 93.

In Henry and wife et al. v. Thorpe et al., 14 Ala. Rep. 103, we considered the act referred to, in connection with the pre-existing enactments, and said, that the weight of authority maintains, “ that it is competent for the legislature to modify the terms of prescription at pleasure, and where the prescription has not been completed when the law was changed, the past shall be effaced, and the substituted law shall determine the time that bars a recovery.” It was added, that upon any change of the law in this respect, it was allowable “ to make such special provisions as are deemed expedient, but if & contrary intention is not manifested, the entire term prescribed by the new law, must elapse after it takes effect, before the prescription is complete.”

It is unnecessary to consider whether the proviso to the first section will not apply to the second also : for however this may be, not even five years from the passage of the statute had elapsed before the present suit was commenced, and it is therefore clear that it could not be invoked as a bar to the action.

The bond, at most, could only invest the defendant with a mere equitable title, which a court of chancery would perfect, by enforcing a specific execution of the contract, and such title cannot be set up as a bar to a recovery in ejectment. Chapman v. Glassell, 13 Ala. Rep. 50; Agricultural Bank v. Rice, 4 How. Rep. U. S. 225; Ridgeley’s lessee v. Britton, 4 H. & McH. Rep. 507; Mathews v. Ward, 10 G. & Johns. Rep. 443.

2. The second charge assumes, that if the deed was executed in pursuance of the bond, that the defence was complete. We have seen, that the bond, and possession under it, cannot avail the defendant, at law, and the question is, whether the deed, which, in form, professes to convey all the title of the defendant, can prevail against the purchaser at the sheriff’s sale. There can be no question that the reason of the law which inhibits the sale of land in the adverse possession of another person, who claims a title, does not apply to sales made under the authority of the law; consequently, it has been often held that land in such a condition may be sold under execution, and all the title of the defendant in execution passes to the purchaser. 4 Kent’s Com. 4th ed. 347, n. 4; Kelly v. Morgan, 3 Yerg. Rep. 437; Frizzle v. Veitch, 1 Dana’s Rep. 211; Violett v. Violett, 2 ib. 324. The reason of the rule which exempts from levy and sale, personal property in the possession of a third person, under a bona fide claim of property, is alike inapplicable. Weir v. Davis & Humphries, 4 Ala. Rep. 442; Horton v. Smith, 8 ib. 73.

The defendant in execution, at the time the land in question was sold, had not executed a deed pursuant to his bond, and consequently had a legal title which might be sold and conveyed by the sheriff. Clay’s Dig. 205, § 16, 17; 350, § 31. By such a sale in this case, the lessor of the plaintiff was invested with all the title of the defendant in execution. Upon this assumption, which is but a sequence from the law as we have stated it, we think it must follow that the defendant’s vendor was incapacitated from performing his contract foy making an operative conveyance as against the plaintiff in execution; and that the deed, though intended as the fulfilment of the condition of his bond, was wholly ineffectual as against the purchaser at the sheriff’s sale. The premises we have laid down are well supported, and the conclusion seems to us to be the obvious result. The judgment is therefore reversed, and the cause remanded. If, however, the defendant has equitable rights, a court of chancery can protect them, and perfect his title.