Henley v. Branch Bank at Mobile , 16 Ala. 552 ( 1849 )

CHILTON, J.

This was an action of trespass to try title, &e. to a store house and lot in Pickensville, bought by the defendant against the plaintiff in error. There was a verdict and judgment for the plaintiff below, for the recovery of the lot and two hundred dollars damages for the detention.

Upon the trial the defendant objected to the introduction by the Bank of evidence to the jury of a deed, executed by the sheriff of Pickens county, for the premises in question. This deed is made to the Bank, and recites that the sale was made in virtue of two write of venditioni exponas at the suit of the Bank against Andrews & Purvis, by which said sheriff was commanded of the goods, &c. of the said Andrews & Purvis, to make the sum of $4045 33, recovered in the Circuit Court of Mobile county by said Bank, &c.

1. The l-eeord does not disclose that the objections now urged were made in the court below to the introduction of the deed: But if they bad been formally taken, and the points now raised in respect to the variance between the judgments and the executions and the recitals in the deed from the sheriff,' ruled by the primary court against the plaintiff in error, still we think there is no error in admitting the deed. It would result in most inconvenient and mischievous consequences, if the deed from the sheriff to a purchaser under execution could be collaterally attacked, and if the purchase could be rendered inoperative by mere misrecitals.of the process, when it is manifest the court, by-virtue of whose process the sale was made, „could amend and set the matter right, and thus render ineffectual a direct application to vacate the sale. This would in effect, enable the party to do collaterally what he could not do directly, In Ware v. Bradford, 2 Ala. Rep. 676, it was held, that a sheriff’s deed could not be collaterally impeached for any irregularities in his proceedings, or in the process under which he sells, that all'that is essential in such case is a judgment, execution thereon, levy, and the sheriff’s deed. So in Love & Williams v. Powell, 5 Ala. Rep. 58-59, it was held, that the sheriff’s deed could only be impeached collaterally by showing fraud in its execution, if the process under which the land was sold was supported by an existing, operative and unsatisfied judgment. See also Allen v. Best, 6 Ala. Rep. 234; 6 Porter, 444. The process under which the sheriff in this case sold the land, gave him full power to make the sale, and we think the misrecital in his deed of the power under which he sold, when by reference to the levy it can be sufficiently identified, should not avoid his conveyance any more than the misrecital of the power of attorney in a deed made by an agent. If the subject matter is well ascertained, and the existence of the power is shown which authorises the sale and conveyanbe by him, a misdescription of the amount of the judgment will not vitiate the deed, if it be shown the sale was made by the sheriff under process issued upon such judgment; otherwise, a bona fide purchaser would be responsible for all the errors of the officers of the court, resulting in the want of strict conformity between the judgments and the executions, and the process and recitals in the sheriff’s deed,, and thus if would frequently happen his title would be defeated by the clerical misprisions of the officers of the court — see as to such variances, Driver v. Spence, 1 Ala. Rep. 540. The sheriff’s deed was clearly relevant testimony and should noi have been rejected. The description of the land in the levy is sufficient:more laxity of description is allowed in such case than in private conveyances. — 10 Watts Rep. 100. See also Driver v. Spence, supra; 1 Watts & Serg. 533.

2. But it is insisted the Bank has no legal existence as a Corporation, and cannot therefore hold land, or maintain this action for its recovery. The plaintiff in error relies upon the statute which declares, that the Branch Banks shall be continued in operation soley for the security and collection of their debts and the full settlement and liquidation of their affairs, arid “ that no real or personal estate shall be taken in payment or settlement of any debt due any one of the said Branch Banks.” — Clay’s Digest, 120 §’s 1, 2. The question, however,, here sought to be made for our revision, is not in any way presented by the record before us, as no objection by plea or’ otherwise was made in the court below calling in question the right of the Bank to hold land, or its power to maintain the action. The defendant below, having appeared to the action, and having failed to make the objection, must be consid-ed as having waived it, and should not be allowed to make it for the first time in this court. 6 Ala. Rep. 275 and cases cited; ib. 679; ib. 844. But had the power of the Bank to purchase or hold the estate or to maintain the suit been properly questioned in the court below, we should feel' no hesitation in adhering to the decision in Martin v. The Branch Bank at Decatur, 15 Ala. Rep. 587, as a correct construction of the enactments.

3. The relation of landlord and tenant having been established, it is clear that the defendant is estopped from setting up a title adverse to that which he acknowledged by his tenancy. In Shelton, et al. v. Doe, ex dem. Eslava, 6 Ala. Rep, 230, it was held, that a tenant, when sued for the possession of demised premises by the landlord, is precluded as well during the continuance of the term as after its termination from calling in question the title of his landlord, or setting up an outstanding title in a stranger. It is further held, that the only effect of a disclaimer of title of the landlord by the tenant is to bar the entry of the landlord after the statute of limitations forbids an entry. 3 Peters Rep. 44; 5 Wend. 246; Randolph v. Carleton, 8 Ala. Rep. 606. These authorities may suffice to show, that the defendant, occupying the relation of tenant to the Bank of the premises sued for, should not have been permitted to prove a, title in himself adverse to his landlord, and that the court very correctly excluded his evidence of title. It follows also from what we have said, that the charge of the court was correct. It but affirms the familiar doctrine, that if the defendant held as tenant of the defendants in execution, he could not set up a title adverse to that under which he entered and held, so as to defeat an action to recover the possession, brought by the purchaser under the execution. The plaintiff claimed to hold, and to have purchased the fee, and the tenant recognised this purchase by holding under it and in subordination to such title. The title then he proposed showing he had acquired since the renting and before the suit was brought, was adverse to that his tenancy recognised. If the defendant was in a condition to avoid the estoppel his relation to the Bank created, as, for example if the Bank by its purchase acquired but a term or leasehold _ interest, which had ceased before he acquired his interest and before the suit brought, he should have shown, or proposed to show, this in connection with bis chain of title which he offered to introduce. He did nothing of this sort, but leaving the estoppel in lull force from the presumed continuanee of his lease, he proposed to override it by proving a title paramount to that of his landlord. The law forbids this. Suppose Henly had been out of the possession and the Bank had been in possession by some other tenant at the time of Henly’s purchase — the possession of the Bank would have been refered to the sheriff’s deed, and regarded as prima fade adverse, so that the deed to Henly, pending such adverse possession, would have been void. So neither shall he take advantage of his possession as tenant to acquire a title which he could not otherwise have obtained. If the circumstances under which he held at the time he acquired the title were such as authorised him to obtain an outstanding title, he should first have shown this fact, and then the court would have erred in excluding his evidence. The bill of exceptions, which must be construed most strongly against him, shows no such proposal, and the conclusion follows that the exclusion of the ■evidence offered and the charge of the court were correct. '

The verdict, we think, is sufficiently certain to warrant the judgment. It describes the premises as “ lot no. 28, in the plat of the .town of Pickensville, in Pickens county.” Many town lots would scarcely be susceptible of a more particular ¡designation than by their numbers upon the plat of the survey of the town. The area, it is true, might be ascertained and .proved, and the boundaries given, if there were natural objects by which to designate the lines; but in the case before us, reference being made to the plat of the town survey, we think the verdict aud judgment sufficiently certain to enable the sheriff, without difficulty, to execute the writ of possession. 3 Humph. 626; 2 J. J. Marsh. 388; 4 Munf. 468; 5 Watts, 371. The case at bar is entirely unlike the cases of Sturdevant v. The Heirs of Merrill, 8 Porter’s Rep. 318, and Bennett v. Morris, 9 Porter, 171. In the first case, the land was described as bounded on the west and south by lands which were vacant in 1804. In.the other, the boundary was given thus, u One hundred and twenty feet on the south side oí St. Michael’s street, commencing at the centre of the house occupied by James Wilson in 1817, &c.” These descriptions, were held too uncertain, as it would have been a difficult, if not an impossible undertaking, for the sheriff to ascertain what lands were vacant in 1804, west, and south of the points designated, or what house was occupied by James Wilson in 1817. In the case before us, however, the plat of the town, which is usually preserved, will furnish the sheriff an easy and certain means of executing the process of the court.

We can see no error in the record, and the judgment is consequently affirmed.