Grant v. Nations , 172 Ala. 83 ( 1911 )

McCLELLAN, J.

Statutory ejectment. . From a judgment for defendant, plaintiffs appeal.

An essential (to their recovery) link in the chain of plaintiffs’ asserted title to the land in question is the deed from William A. Evers to Lee White, of date March 2, 1907. The testimony shows, without dispute, that on that date and prior thereto the land in controversy was held, adversely, by the McGimseys (defendants), and “that neither of the plaintiffs, nor said Lee White, their grantor, nor the said William A. Evers, grantor of the said Lee White, had been in possession of the property since the 7th of September, 1903. * *

In the Code of 1907, which became effective after the deed from Evers to White was executed, the following provision was, in section 3839 of that codification, added to section 1530 of the Code of 1896: “Action in the Nature of Ejectment. * * * This action must be brought in the name of the real owner of the land, or in the name of the person entitled to the possession thereof, though the plaintiff may have obtained his title thereto by a conveyance made by a grantor who was not in possession of the land at the time of the execution of the conveyance thereof. * * * ” The quoted provision of the statute (section 3839) is without force to affect the rights of the defendants, who held adversely when the conveyance was executed. — Davis v. Curry, 85 Ala. 133, 4 South. 734; Carr v. Miller, 161 Ala. 658, 49 South. 802.

By express limitation in Code 1907, § 10, that codification did not affect any defense existing at the time it became effective. In Skains v. Barnes, 168 Ala. 426, 53 South. 268, consideration was given the term defense, employed in this section and in section 95 of the Constitution. The law in force and effect when the conveyance from Evers to White was executed (March 2, 1907) rendered that conveyance void, an utter nullity, as to these defendants. — Dexter & Allen v. Nelson, 6 Ala. 68; Harvey v. Carlisle, 23 Ala. 635; Bernstein v. Humes, 60 Ala. 582, 31 Am. Rep. 52; Davis v. Curry, 85 Ala. 133, 4 South. 734; Mahan v. Smith, 151 Ala. 482, 44 South. 375; Carr v. Miller, 161 Ala. 658, 49 South. 802.

The legal result, protective of the rights of the adverse holders, was a defense within the mentioned limitation. — Code, § 10; Bridges v. McClendon, 56 Ala. 327. If the statute (section 3839) was susceptible of a construction that would abrogate the common-law doctrine before stated, that consequence would not have been affected by the establishment, as appellants contend was done by that section, of a mere rule of evidence. If the statute was given that construction, and was applied here, the effect would be, obviously, to validate, as against these defendants, a conveyance that, when executed, was void as to them. A legislative effort similar in principle to that was pronounced constitutionally invalid by this court in Alabama Life Insurance Company v. Boykin, 38 Ala. 510.

Accordingly, in no event, under this record, could the plaintiffs recover in statutory ejectment; and, in consequence, the errors assigned were, if errors, innocuous to plaintiffs.

The judgment of the court is affirmed.

Affirmed.

Simpson, Mayfield, and Sayre, JJ., concur.