Bliss v. Smith

1 Ala. 273

• Court: Supreme Court of Alabama
• Decided: January 15, 1840
• Status: Published

Opinion

GOLDTHWAITE, J.

— 1. Much stress has-been laid on the circumstance of the vendor’s remaining, and dying, in the possession of the land sold and conveyed; but this is not so important as the counsel for the plaintiff in error considers it; because the possession of the vendor is in all eases, transferred to the vendee eo ins t anti with the execution of the conveyance, by the statute of uses; (Aik. Dig. 94, §. 37.)

2. This being the operation of the statute, the entire argument fails; for the authorities ci-ted, are conclusive to show, that the want of title is- no defence, where the possession remains with the vendee.

But the defence’ attempted in this case, does not make out a failure of title. The patent may have been issued to Nock-aetubba, and yet no covenant of Yancey be broken: Nock-ae-tubba may have conveyed to Yancey, with covenants of warranty, in which event, the former would be estopped by his deed, from disputing the title of the latter.

3. We consider it as clearly settled, that a- vendee, who is not evicted from the lands-sold, cannot dispute the title of his vendor, in any case, where he claims under an executed conveyance, in the absence of fraud.

The reason of this rule is founded in the obvious policy, of not permitting, one, at pleasure, to disavow a title which he has admitted, by receiving a conveyance founded upon it; and beeause a court of law, cannot place the parties in the condition they were in, when the conveyance was executed.

Let the judgment be affirmed.