Holloway v. Grace

B. F. SAFFOLD, J.

The purpose of the bill was to enjoin the execution of a writ of habere facias possessionem, issued upon a judgment of ejectment recovered by the appellant against the tenant of the appellee. The ground of relief is alleged to be, that the complainant, Mrs. Grace, had a separate statutory estate in 1856, a portion of which her husband converted to his own use. In March, 1868, in consideration of this indebtedness, he conveyed the property in question to her by deed, which was not recorded. In October, 1868, the defendant, Holloway, recovered a judgment against him on a note existing prior to the conveyance. The land was sold, under an execution issued on that judgment, as the property of the husband, and purchased by Holloway. He then commenced an action of ejectment against the person in possession, and obtained judgment, with the writ of háb.fac. poss. The bill was demurred to, for want of equity, and adequate remedy at law.

The effect of a judgment for the plaintiff in ejectment, is that he recovers possession of the premises for the term of the demise declared upon. Kennedy's Heirs v. Reynolds, 27 Ala. 364. If the defendant in the suit is merely a tenant, the landlord, nevertheless, though not made a party, is deprived of the possession, and put to his action of ejectment. Mrs. Grace occupies this attitude. Her title is not an equitable one only. She has a convejrance of the legal title, which is not affected, in this respect, by not having been recorded. No equity jurisdiction is shown.

The decree is reversed, and a decree will be rendered in this court dismissing the bill, on the ground of adequate remedy at law.