Carr v. Miller

49 So. 802, 161 Ala. 658, 1909 Ala. LEXIS 146

Opinion

SAYRE, J.

Statutory action of ejectment by the appellee against the appellant. The plaintiff traced title, passing by sufficient muniments, from the defendant into himself, and then, probably anticipating the defense, proved the execution and delivery of a deed by himself to E. G. McNeill before suit brought, and that at the date of the last-mentioned deed the defendant was in posession of the land, holding the same adversely. To the case thus shown section 1530 of the Code of 1896, as amended by section 3839 of the Code of 1907, had no application. — Section 10, Code 1907. As the law then was, the deed from plaintiff to McNeill, though valid between the parties, was void as against the defendant. - — 3 Brick. Dig. p. 18, § 51. It conferred no rights against the defendant, and he could claim no benefits or defenses under it. — Davis v. Curry, 85 Ala. 133, 4 South. 734. Under the ' circumstances, which were shown without contradiction, the deed from plaintiff to McNeill was a warrant of attorney to McNeill to sue in ejectment in plaintiff’s name. A suit by plaintiff to the use of McNeill would operate as an estoppel on plaintiff to deny, as against McNeill, the latter’s title. But these-were matters between plaintiff and MeNeill, with which defendant had no concern. Under the undisputed evidence, the plaintiff was entitled to recover.

Affirmed.

Dowdell, C. J., and Anderson and McClellan, JJ... concur.