Harvey v. Doe ex dem. Carlisle , 23 Ala. 635 ( 1853 )

GOLDTH WAITE, J.

The main question in this case arises on the deed from Matilda Harvey to Carlisle. It is conceded by the plaintiff in error, that it is void as to Wiley Harvey, by reason of his being in adverse possession of the land described in it, at the timo of its execution, and this would defeat a recovery on the demise from Carlisle. If this deed is void as to the party holding adversely, it would seem to follow that the plaintiff below would have been entitled to a recovery on the deed from Wiley Harvey to Matilda Harvey, under the demise in the declaration from her. To meet this view tho counsel for the plaintiff in error insists, that the deed to Carlisle, although void as to the adverse holder, is good as between the parties, and has therefore operated to convey tho title out of Matilda Harvey, and for that reason a recovery cannot be had on the demise from her. This position cannot be sustained. — ■ A deed of lands held adversely to the grantor, it is true, is good as between the parties; but this is upon the principle of estoppel, (4 Kent’s Com. 448,) which can only operate upon tho parties and their privies. It does not apply to the adverse holder, and as to him it is well settled that the grantor may maintain ejectment.—Williams v. Jackson, 5 Johns. 489; Livingston v. Trovers, 2 Hill (N. Y.) R. 489; Wolcott v. Knight, 6 Mass. 418; Brinly v. Whiting, 5 Pick. 348; Edwards v. Rogs, 18 Verm. 473; University of Vermont v. Joslin, 21 Verm. 52; 4 Kent’s Com. 448. The decision of this question is conclusivo upon the right of the plaintiff to recover on the demise from Matilda Harvey.

The deed from Wiley Harvey and wife was properly admitted in evidence. It was, so far as the husband was concerned, in full compliance with tho law. — Clay’s Dig. 152 § 1; ib. 15T §39; ib. 151 §1. As to the other deed, it is unnecessary to consider the question raised, as it may be excluded, and still the plaintiff would be entitled to recover.

There is no error in the record, and the judgment is affirmed.