Williamson v. Sammons , 34 Ala. 691 ( 1859 )

A. J. WALKEN, O. J.

The rule which prohibits the transfer of property, adversely held, is founded in the idea, that such transfers involve the evils of maintenance. 4 Kent’s Com. 446, et seq.; Goodwin v. Lloyd, 8 Porter, 237 ; Brown v. Lipscomb, 9 Porter, 472. “ The reason of this rule was to prevent maintenance, and to prevent the weak from being oppressed by a powerful antagonist, to whom his competitor might assign his title, and who, by his wealth, his influence, or his power, might prevent the ends of justice.” — Hinton v. Nelms, 13 Ala. 222.

The offense of maintenance consists in the “ officious intermeddling in a suit that no way belongs to one, by maintaining or assisting either party, with money or otherwise, to prosecute it or defend it.” — 4 Blacks. Com. 135. It is certain that the commission of this offense is not involved in the maintaining by the seller, who has warranted the title, of the suit of his purchaser which involves that title. The seller who has made a warranty of title has a right to aid his purchaser in a suit involving the validity of the title conveyed, and has a direct interest in the litigation. One having such an interest in a suit is not guilty of maintenance in upholding it. 6 Bacon’s Abr., Maintenance, B. 1, page 412; 1 Story on Con. §§ 578, 579; Chitty on Con. 584; Smith on Con. 146; Addison on Con. 94.

A vendor who stands as a warrantor of the title, may take upon himself the suit of his vendee which involves that title, and may act in its prosecution as if it were his own suit, when his vendee interposes no objection. Upon principle, we can see no reason why he may not as well be permitted to take back the title, and prosecute the suit in his own name. None of the dangers or evils of maintenance would result from the allowance to a vendor of the privilege of taking back his title and maintaining it in an action in his own name, as he might do in the name of his vendee. Such a transaction does not fall within the reason of the rule which prohibits the conveyance of property adversely hold.

The law, in the absence of proof to the contrary, implies a warranty of title iu the sale of chattels. — Ricks v. Dillahuuty, 8 Porter, 133.

IJpon the reasoning above adduced, we decide that, if the plaintiff, Williamson, sold the horse which is the subject of litigation, either with an express or implied war ranty of title; and that, after such sale, the defendant took the horse into his possession, and held him under a bona-fide claim of title, a transfer back to Williamson by the purchaser, upon a rescission of the contract of purchase made pending the adverse possession, would not be void.

There was error in the charge given by the court, for which the judgment must be reversed, and the cause reman cled.