Banks v. Speers , 117 Ala. 264 ( 1897 )

McCLELLAN, J.

What was said in the case of Speers et al. v. Banks, 114 Ala. 323, viz.: “If Speers should be defeated, in his application for the sale of the lots, he would be liable to ejectment at the suit of Banks for'the recovery of the possession of them,’’ proceeded on the assumption of Speers’ personal possession of the lots, and meant no more than that Banks would be entitled to the possession as against Speers, or any one holding under Speers. The court did not intend by the language used to deny or question the doctrine that in the statutory real action, as well as in ejectment, the tenant in possession is the only proper party defendant; that matter was not at all in the mind of the court. — Morris v. Beebe et al., 54 Ala. 300.

The circuit court properly ruled that this action could not be brought against Speers while the land was in the actual possession of a tenant under Speers, and the judgment is affirmed. .

Affirmed.