Davis v. Denham , 145 Ala. 247 ( 1906 )

ANDEBSON, J.

The bill in this case avers that Henderson, the grantor of Davis, had a. better title than her grantor, but relies upon an estoppel by statutory warrantv on the part of J. B. Denham as binding on Davis, who was the transferee of the contract of purchase made; between J. B. Denham and. the Hendersons. “It. does not, in modern times, constitute a case of privity for the purpose of estoppel to show that one man holds a conveyance of land from another. The modern grantee, unlike a feofee, acquires the property for himself, and his faith is not pledged to maintain the title of the grantor. A relation of privity is a relation of dependence, not of independence or of superiority. Between the grantor and and grantee the recitals of the deed will doubtless; be conclusive evidence in a proper case; but the instrument will not for all purposes prevent the grantee from asserting a paramount title which lie lias acquired from a third person.” — Bigelow on Estoppel, p. 345 ; Cooper v. Watson, 73 Ala. 252 ; Blight v. Rochester, 7 Wheat. 535, 5 L. Ed. 516 ; Robertson v. Pickrell, 109 U. S. 608, 3 Sup. Ct. 407, 27 L. Ed. 1049 ; Cummings v. Powell, 97 Mo. 524, 10 S. W. 819. Davis is not estopped from setting up the title he derived from the Hendersons by the deed from J. B. Denham to this complainant, and the chancellor erred in not sustaining the demurrer. While Davis would not be estopped from setting up the title he derived from the Hendersons by any covenants of warranty in the deed from J. B. Denham to this complainant, the. bill further avers that there is no title in him, because the deed was made to him while the complainant was in the adverse possession, and was therefore void. The bill avers that Henderson had the title to the land, and, if Davis had a valid deed from Henderson, then Davis would have the title. On the other hand, if the deed to Davis was void, then the title would be in Mrs. Henderson, and «lie; would be a necessary party. The complainant failed to make Mrs. Henderson a party, upon the idea that she had conveyed the land to Davis, yet aveis facts to show that the deed is void as against the complainant. For the reasons above set out, the chancellor should have sustained the demurrer to the bill, and the decree must be reversed, and the cause remanded.

Bversed and remanded.

Haralson, Dowdell, and Denson, JJ., concur.