Smith v. Mundy

18 Ala. 182

Opinion

DARGAN, C. J.

In the case of Morgan v. Ramsey, 15 Al. 190, we held that a sheriff had no power to sell land under an execution, after the return day of the writ, and that a sale by' him afterwards, unless his authority was revived by some new process, would not pass the title to the purchaser. We were-forced to this conclusion by the decisions of this court previously' made, and it must now be considered as the settled law. — • See Barton v. Lockhart, 2 Stew. & Por. 109; Bobo v. Thompson, 3 ib. 385; Farmers Bank of Chattahoochie v. Reid, 3 Ala. 299.

As the sheriff sold the land after the return day of the execution, he acted without legal authority, aud no title passed by his sale to the purchaser.

We also held in the case of McPherson v. Walters, 16 Ala. 714, that if one induced another to purchase land at sheriff sale, (representing that the land was liable to be sold under the execution, when in truth it was not, that the party was not estopped at law from asserting bis legal title against the purchaser at sheriff sale, although he might be in a court of equity. I have reflected on this decision since it was made, and ant thoroughly satisfied it is correct, for the legal title to land must always prevail in an action of ejectment, and I cannot conceiye_how the title to land can pass at law by fraudulent representations, or by acts or conduct in pais, without deed: — AsTlrnci erst a n d a legal estoppel, it does noTbperate by way of prohibiting him who has the legal title from asserting it only, but operates by way of passing the title to him, in whose favor the estoppel works. — Bean v. Welsh, 17 Ala. 770, and cases therein cited. In an action at law, therefore, to prevent the plaintiff from recovering on the ground that he is estopped from asserting his title, the estoppel must be of such a character as will pass the legal title from the plaintiff and vest it in him, who claims the benefit’of the estoppel.

But it is supposed that the plaintiff is estopped, because after the sale of the land, he agreed with Caldwell, the purchaser, to rent it of him, and did occupy it afterwards as his tenant. It is true that one who rents land from another and receives possession of him cannot set up title in himself, or a stranger, to defeat' a recovery by the landlord. This principle is so familiar, that it needs no authority to support it. He may buy the title of his. landlord, or, if the title be assigned or transfered to another during the lease, he may set this up in bar of the landlord’s right to recover; but so long as the title remains in the same condition, a tenant who receives possession from his landlord canriot be permitted, whilst he retains that- possession, to dispute the title under which he entered by setting up title in himself,-or in a stranger. But no authority can be found which would forbid the tenant, after he had yielded up the possession from asserting paramount title to that of the landlord. Indeed all the authorities agree, that if one has the title to land, but obtains the possession by contract of lease from another, although he cannot dispute the title of him from'whom he obtained possession, so long as the tenancy continues, yet after this is terminated, and he has restored the possession, he-may then assert his title paramount against his former landlord, and his previous tenancy cannot bar him of his right to recover. •

Applying these general principles to the record before us, they show that the court did not err, and the judgment must be affirmed.