Doe ex dem. Stevens v. King , 21 Ala. 429 ( 1852 )

GOLDTHWAITE, J.

— The plaintiff in error, claiming under execution sale, takes only the title which the defendant in the execution had; and although his possession may have amounted to a legal title, so as to be the subject of levy and sale, yet it is obvious, that, if a superior legal title was outstanding in another, the defendant in error, who is a stranger to the execution, may defend under it. Thomas Jennings, Jr., the defendant in the execution, held under the will of his father, and the only title of the father was the bond of Youngblood. By the approved contract, the full legal title was vested in Caswell and Nuchols, Jones & Parsons v. Inge & Mardis, 5 Porter, 327; Roper v. Bradford, 9 ib. 354; and whether it remained in them, or passed to the heirs of Caswell, and Lanier and Kelly, or was transferred so as to vest in Youngblood or Howard, is immaterial, as, in either event, the outstanding legal title would be superior to that under which the plaintiff claims, and thus prevent him from recovering. King v. Stephens, 18 Ala. 475.

It follows, that there is no error in the charge, and the judgment is affirmed.