Hair v. Grigsby , 18 Ala. 45 ( 1850 )

PARSONS, J.

This is an action of trespass to try titles, brought by Hair against Grigsby in the Circuit Court of Sumter, to recover a tract of land. The material facts of the case may be stated thus: the tract of land was sold by Boling tó Evans, in March 1837, Boling taking Evans’ several promissory notes with another person as surety for the payment of the purchase money, and executing his bond to Evans to make title after payment of the purchase money. Boling afterwards transfered one of these notes' by delivery and without recourse to Earby, by whom it was transfered to W. & R. Kelly and subsequently a judgment was recovered thereon against Evans in the name of Boling, to the use of W. & R. Kelly, and an execution from the judgment was returned no property found. W. & R. Kelly afterwards filed their bill, stating these facts, against Boling and Evans, the object of which was to cause the land to be sold in satisfaction of their debt. The land was accordingly sold and conveyed, pursuant to the decree of the chancellor, to Hair, as the best bidder and purchaser.

■ Another of the notes was endorsed by Boling to Keeland and the latter recovered a judgment thereon against Evans, and an execution from this judgment was returned no property found, as to part of the amount. A bill was afterwards filed by said Keeland, the object of which was to cause the same tract of land to be sold to satisfy the last mentioned debt. This bill was filed against Evans alone, and there was a decree for the sale of the land, and it was sold accordingly and purchased by Grigsby, the defendant.

It appears, therefore, that each of the debts was owing for the purchase money — that Boling had not conveyed the legal title to Evans and was not bound to do so, until the purchase money should be paid. Hair claims as purchaser under a decree, which was prior to the decree under which Grigsby claims, and the suit, in which the decree under which Hair claims was rendered, was brought before the commencement of the suit in which the decree was rendered under which Grigsby claims, and the sale to Hair was prior to the sale to Grigsby. W. & R. Kelly filed their bill against Boling and Evans, and it is clear from the record of that suit and from the deed to Hair, that all the right and title of Boling and Evans passed to Hair. Hence the legal title, which was held by Boling, and the equitable title, which was in Evans, are both vested in Hair, but, of course without prejudice to strangers to the suit. The question then is, what title has Grigsby? It might be conceded that he has all the right and title which Evans had at the time of the decree, under which Grigsby claims, or at any lime before. This concesión would only produce this result, — that the equitable title of Evans is now in Grigsby, — leaving the legal title, which was held by Boling, in Hair, under his purchase. Upon the legal title alone, Hair could recover the land at law. The charge of the Circuit Court upon this point was, therefore, erroneous, as as we think. The legal title which was in Boling neither was nor could have been affected in any manner by the decree under which Grigsby claims, because Boling was not a party to that suit. — Doe ex dem. Duval’s Heirs v. McLoskey, 1 Ala. 708.

It is contended by Grigsby’s counsel, that as the note upon which the bill of W. &R. Kelly was filed, was transfered without recourse by Boling, the lien upon the land for that part of the purchase money did not pass, and further that the bill of W. & R. Kelly was not adapted to the claim of such a lien, but that they went into chancery as creditors at large of Evans, to subject his equitable interests to the payment of their judgment, and that therefore their lien on the land could only date, at most, from the time of filing their bill, which was subsequent to the date of the lien, which was properly asserted by Keeland’s bill.

Even if we could admit all these propositions, the ground upon which we have placed our opinion above is not answered. Hair holds the legal title and more — he holds such equitable title as Evans had at the time, when the suit in equity was commenced under which Hair claims, at least. This legal title must prevail at law, over the title of Grigsby. This is all that we decide. Let the judgment be reversed and the cause remanded.