Brainard v. McDevitt , 21 Ala. 119 ( 1852 )

DARGAN, G. J.

— Tbe only question involved in this case, grows out of tbe second section of our statute of frauds. That section, after prescribing tbe mode in which personal property shall be conveyed, when tbe conveyance is not founded on a valuable consideration, goes on to provide, “that where any loan of goods or chattels shall be pretended' to have been made, to any person with wbam, or those claiming under bim, tbe possession shall have remained for the space of three years, without demand made and pursued by due course of law on the part of the pretended lender; or where any reservation or limitation shall be pretended to have been made, of a use or property, by way of condition, reversion, remainder or otherwise, in goods or chattels, the possesion whereof shall have remained with another as aforesaid ; the same shall be taken, as to the creditors and purchasers of the person remaining in possession, fraudulent within this act, and that the absolute property is with the possession; unless such loan, limitation, or reservation of use or property be declared by will or deed in writing, recorded as aforesaid.”

¥e think it clear, that to give title to a purchaser under this section of the act, the three years contemplated by it must be complete at the date of his purchase. If the three years were not then complete, no title at the date of the purchase could pass to the purchaser; he could not then say, that his vendor had had the possession during the time required by the statute to give him title; and if he obtained no title at the date of his purchase, his subsequent possession could give him none; unless, indeed, he could protect himself under the statute of limitations, which is not pretended in this case.

It is, however, urged, that the statute gives the title, if the possession has remained with the borrower, or those claiming under him, for the space of three years; and as the defendant claims under Montgomery, he has the right to add his own possession to the possession of Montgomery, thus making-more than three years before the suit was brought. But we cannot allow the defendant to tack his possession to the possession of Montgomery, to claim the benefit of the statute. The defendant must show, that his vendor, or those through whom his vendor claims, had had the possession for three years. And it is manifest that Montgomery did not have the possession for three years, (after he sold to McDevitt,) before he sold to the defendant.

Now, if the defendant had sold bona fide to another, before this suit was brought, then his vendee would have been entitled to the benefit of his possession, as well as the possession of Montgomery; because his vendee conld have said, my vendor and those through whom he claimed, have had possession of the slave for three years, by way of loan not reduced to writing; and thus have brought himself within the very words of the statute. But the defendant cannot say that his vendor, or those through whom he claims, had had three years’ possession by way of loan; and, therefore, he has not brought himself within the act, nor can he claim any benefit from it.

There is no error in the ruling of the court, and the judgment must be affirmed.