Price v. Talley's Adm'rs , 18 Ala. 21 ( 1850 )

CHILTON, J.

It is well settled in this State, that to entitle the plaintiffs to recover in the action of detinue, they musí have the entire interest in the thing sued for; they must have .the absolute property with the right to the immediate possession, or a special property, as in the CEise of a bailee.” — Miller v. Eastman, 11 Ala. 609-614; Hogan v. Bell, 1 Stew. 536. To say nothing as to the failure of the plaintiffs to revive the suit in the Circuit Court in the names of the personal representatives of such of the plaintiffs as had died'since it was commenced, it appears that Emory W., Richard P., James M. and Elisha T. Hughes, children of Christiana Hughes and heirs of Polly Woods, and who w.ere such when the .suit was cm* menced, were not made-parties thereto. This fact, which is shown by the record, defeats -the plaintiffs’ right to- recover,under the-decisions-above refered to, unless the conveyance-by the said children of Christiana to William J. H-ughes, one- of' the plaintiffs, dated Oct. 4, 1838, passed their interest to him: The proof shows that at the- time- this sale was- made Jacob Talley, the defendants’-intestate, was in the actual possession of the slave, claiming the same as- his-mwn, having purchased at constable’s-sale on the 4th March 1828-, under the belief that the person selling-the slave to-hint-had a-good right to sell and dispose of him. T,lie-court charged-'the jury that if they believed that the said-Jacob Talley had-purchased'the slave sued: for, believing that the person selling ha-d a-good right to sell; and' that he held the said slave under said purchase as his own property, against the claim of all persons, and that this'was known to-said persons, (the Hughes,) at the time they executed the said-conveyance-or transfer- to W. J. H-ughes, tha-t then the plaintiffs-ivere not entitled to recover. The effect of the charge is-, that-' if Jacob Talley purchased in good.-faiih and held the'slave, and-claimed title- to. him adver-se- to every one- else, and this was: known to the persons transfering to W, J. Hughes at the time of their transfer, it amounts to a sale of a chose in action, and-that such transfer does not vest any title- which will support this action. Irrespective of the question, so ably argued by the counsel for the plaintiffs in- error,- that the deed to Polly and Drury Woods conveys such an interest to- the- rem-ai-nder-men, us cannot be defeated by the-sale made of the-slave as the property of Drury Woods, we think th.e charge is strictly in accordance with the law; for if we-concede the position.contended for, that the remainder-men could sue- and- recover from the purchaser, it does not follow that they can transfér this.right of-action to another, so as to enable him to-maintain the suit in his own name. Granting, for the sake of th.e argument, what the counsel for the plaintiffs contends for, that this is not a contingent remainder, but that it is such an interest as is not subject-to be-defeated by any disposition of the party entitled, for life, even then it must be held subject to be turned into amhose in.action. The case of Broome et al. v. King, adm’r, 10 Ala. 819-823, is-an authority directly in point. In that case, it w.as held that a. sale nrade bjt-the husband of the tenant for life, and, before-the termination of the life estate, changed the remainder, which was vested, into a chose in action, disabling, the husband of one of the parties entitled in remainder, and who- united with him all the parties except his wife, from recovering against the alienee of the tenant for life. That such adverse possession will avoid the sale made to Wm. J. Hughes a’nd thereby render the present plaintiffs incapable of recovering — see Goodwyn v. Lloyd, 8 Port. 237; Brown v. Lipscomb, 9 ib. 472; Nelms v. Hinton, 13 Ala. 222; Harrison v. Pool, 16 ib. 167; Herbert v. Hanrick, 16 ib. 581. The question Is not whether Talley took a good title to the property by his parchase under the constable’s sale; but did he, at the time of the transfer to’ Wm. J. Hughes, hold the property as his own under a bona fide claim of title, and had the persons- making, the transfer knowledge of this fact at the time of such transfer? These inquiries were fairly and properly presented by the charge- of the court to1 the jury; and being the only matters assigned as error upon the record, we do not deem it necessary to go- beyond them,- to decide upon the character of the title conveyed by the deed of Price to his daughter and son-in-law, Polly and Dru'ry Woods.

Judgment affirmed.

Parsons, J., not silting.