Innerarity v. Kennedy , 2 Stew. 156 ( 1829 )

By JUDGE COLLIER.

The material question for the _ Court to determine, is, whether the deed of William E. Kennedy to the plaintiff should not have been permitted to go in evidence to the jury in the Court below. The deed contains several recitals, descriptive of the lot conveyed, and declaratory of the cause of the conveyance, none of which it is conceived impair its validity -r and then conveys the lot to the plaintiff, as administrator of J. E. Collms, deceased, and covenants that if the grantor’s title to the lot shall be confirmed, or a certificate of confirmation issue therefor from the United States Government, that then he will, if necessary, make further assurance of title. The lot conveyed is south of the thirty first degree of north latitude, east of the Pearl, and west of the Perdido river. The .grantor in the deed refers to his title as emanating from the Spanish Governor, Gayoso, in seventeen hundred and ninety-eight. This deed, in the opinion of the Court, conveys to the plaintiff, all title which was vested in the grantor, and there is nothing, on the face of it, which discovers that the legal title was not vested in him. The covenant for further assurance, if further assurance were unnecessary to pass the legal title, would be rejected; whether it was, the Court is unprepared from the facts to say.

The deed, it has been remarked, makes a conveyance to the plaintiff as administrator of J. E. Collins, deceaed, and hence the defendant has argued, is not admissible for the plaintiffin this action in his individual capacity. This argument, it is believed is not sustainable; describing the plaintiff as administrator, can be viewed only as a designate personal. ^a The legal interest is vested in him individually, and it is competent for him to use the deed as evidence in an action where his representative character is not noticed on the record. The plaintiff will be answerable over, should he recover, to the heirs of his intestate; but that circumstance cannot form matter of legal defence to the plaintiff’s action. So strict is the regard paid in Courts of law to the legal title, that a trustee is permitted there, to maintain an action to try title against his cestui que trust. ^b If the deed had been made to the julaintiff in his individual character,-and he had described himself on the record as administrator, we apprehend the proof would have been variant from the allegation, and he must have failed in his action; but such a case is not analogous to the -one we are considering. We are of opinion that the Court erred in not permitting the deed to go to the jury; its sufficiency to prove the issue is not presented to us, but only its admissibility; and on that point is our opinion expressed. The judgment is reversed and the cause remanded.

a 1 Peters 693.

b Adams’ Ejectments 33.