M'GEE vs ANDREW and WILEY EASTIS, 5 Stew. & P. 426

SAFFOLD, J. The action was trespass, under' the statute to try titles, &c. The plaintiff in error having been plaintiff below, a verdict and judgment were there given against him. On the trial he took a bill of exceptions, which discloses the following facts.

The plaintiff produced in evidence, an exemplification of a judgment in favor of the Bank of Alabama, against the defendant, Andrew Eastis, and one Michael Beams, rendered at the October Term, one thousand eight hundred and. twenty-six, of Tuska-loosa Circuit Court; also, an execution issued on said judgment, to the sheriff of Jefferson County, where the land lies, and a return by the sheriff, shewing a levy on the premises, and a sale thereof to the plaintiff.

He then produced, and read to the jnry, the sheriff’s deed, in due form — proved the defendants in possession, at the commencement of the suit, and the yearly value of the premises, and there rested. The defendants, to show title in one William Eas-tis, produced and proved a deed, duly recorded, of the premises in question, made by Andrew Eastis to the said William Eastis, dated the seventh November, one thousand eight hundred and twenty-five. To the reading of this deed, for the purpose mentioned, the plaintiff objected, but the objection was overruled, and the deed received as evidence.

The defendants then offered the said William Eastis, as a witness, to prove that they were in possession of the premises, as tenants under him, from the date of his deed, until after the commencement of this suit; To the competency of this witness the plaintiff objected, on the ground of his interest; but the testimony was received. The plaintiff then proved, that the defendant, Andrew Eastis, purchased the premises in question, of one William Johnson, in the year one thousand eight hundred and twenty-two, and took from him a bond, for titles, when the purchase money should be paid.

He further proved, that; after the death of said Johnson, in November, one thousand eight hundred and twenty-six, the defendant, Andrew Eastis, obtained an order or decree from the County Court, against the administrators of Johnson, decreeing that they should convey the title to the premises in question to him, Andrew Eastis, and that the deed was accordingly made, in December, one thousand eight hundred and twenty-six.

On this evidence, the Circuit judge instructed the jury, that if there was no fraud in the transaction the title conveyed to Andrew Eastis, by the administrators, in December, one thousand eight hundred and twenty-six, by relation back, to the deed which he had made to William Eastis, in one thousand eight hundred and twenty-five, eo instanti vested in the latter ; and, therefore, the plaintiff could not recover in this action. To all which the plaintiff excepted.

The plaintiff now assigns for error, the following causes: First — That the Court permitted the defendants to read in évidence, the deed from Andrew to William Eastis. Secondly — In admitting William Eastis, as a witness, to prove that the defendants held as tenants; under him. Thirdly — That the chai’ge to the jury, as above stated, was erroneous. 1. The question presented by the first assignment; is necessarily embraced by the third; so that the former may be deferred, and examined in conjunction With the latter. 2.

As respects the second assignment, it is sufficient to say, that, though the witness was interested in the subject matter of the suit, that did not render him incompetent, unless he was interessed in the event of the suit; or, unless the judgment to be rendered, would have been evidence for or against him in some other suit.

The direct interest does not appear, if it could otherwise be supposed to exist; yet; in as much as it does not appear, but that the defendants may haré held under the witness, as tenants at will, or for a term of years, which had expired before the trial, this consideration, at least, removes the objection of interest; and it is sufficiently clear, that no judgment which could have been rendered in this eause, would be evidence, either for or against the witness, in any other suit. The objection could only go to his credibility — Stewart vs Kip 3.

The third assignment presents the only difficulty — that is, whether the facts in evidence, in the absence of fraud, entitled the plaintiff, or the defendants, to a verdict'? The principle, as a general rule, is not contested; that a defendant in an action of this kind, is at liberty to prove an out-standinging title in a third person, and thereby defeat the plaintiff's right of recovery.

But, it is contended, there is an exception in the case of a defendant, as whose property the premises have been sold, under execution : that neither one, in that situation, nor his co-defendant, standing in a different relation, can avail himself of that defence. The case of Jackson, ex dem. Klien, vs Graham, which is relied on by the plaintiff’s counsel, would appear to sustain his position, if it has a just application to the facts of this case. The plaintiff claimed under the sheriff’s deed.

The defendant was proved to have been the defendant in the execution, under which the sale had been made, and to have been in possession of the premises, at the date of the judgment, and at the time of the trial. To rebut this testimony, the defendant offered to prove, that one Day was the real owner of the land, by virtue of a conveyance, duly executed by himself and wife, to Day, previous to the judgment: that the plaintiff had due notice of the conveyance, at the time of his purchase; and that there was a verbal agreement between the parties, to try the title of Day, alone.

This evidence having been rejected, the rejection of it was the subject of revision, in the Supreme Court. There, the testimony was adjudged inadmissible; and it was held, that such plaintiff comes into exactly such estate as the debtor had; and if it were a tenancy, the plaintiff would be tenant also, and estopped in a suit by the landlord, from disputing his right, in the same manner as the original tenant: that the latter be»comes quasi tenant at will, to the purchaser, and it was not to be presumed he held adversely.

To test the effect, in this case, of the principle there recognised, it must be observed, that in the case referred to, the defendant in the execution was the sole defendant in the ejectment; that it appeared he was in possession, not only at the date of the judgment, but also at the time of the trial; and that he was denied the privilege of setting up an outstanding title, on the ground of his constructive tenancy under the plaintiff, and the legal presumption, in all such cases, that he did not hold adversely; and was, therefore estopped from introducing evidence, that be did.

The case of Kane vs Sternberg, was mainly relied upon by the Court, as authority for the decision already noticed. It is true, in that case, that the Court maintained the principle, that after a sale of lands, by the sheriff, under a ji- fa., the defendant becomes quasi a tenant at will to the purchaser, and his possession is not deemed adverse, until an actual dissesin, or disclaimer, on the part of the defendant. But, it is worthy of notice, that the facts in that case, were so far different from those in Klien vs Graham, that the same principle is not necessarily applicable to both.

In the former the defendant did not attempt to set up an out-standing title, in any other than the plaintiff or his trustee, or to assert title in himself. The purchase at the sheriff’s sale, not having been made by the plaintiff, in person, but by one Cox, as his trustee, under a parol appointment, and he having immediately conveyed to the plaintiffs, the question raised was, whether parol proof of the trust in Cox, could he admitted, and whether the possession of the defendant ought not to have been considered adverse, and the conveys anee by Cox, therefore, void.

But, the Court held, that Cox being a mere trustee, his possession was, in fact tlie possession of the plaintiff; and that this consideration, alone, was an answer to the argument founded on the idea of adverse possession. Thus it appears, that the application of the doer trine of tenancy, in the leading case, was different from that in the case of Klien vs Graham: and so far as the difference may be found material, they both differed from the one under consideration, as respects the defendants’ possession, at the time of the trial.

In those, the records showed, that the possession of the defendants continued down to the time of the triáis: in this, it does not appear that the defendants remained in possession, after the institution of the suit. From the argument of counsel, which seems to have prevailed, in the case of Klien vs Graham, and the language of the Court, this continued possession by the defendant in the execution, appears to have been considered material.

There, the plaintiff’s counsel insisted, that the defendant must have had some right to the land, for he was in possession; that at least, the emblements were the defendant’s, and to these the plaintiff was entitled, as well as to six months’ notice to quit. The Court, in sustaining the objection made to the admission of evidence, shewing an out-standing title, briefly remarked, in effect, that the defendant’s interest having been sold, under execution, to permit the purchaser to recover it, could not prejudice the rights of any other true proprietor. .

From this examination of that case, it obviously appears, that the plaintiff’s right to recover, was sustained alone on the presumption of some legal interest in the defendant, arising from the fact of his possession ; and from his constructive relation, of tenant to the purchaser, which estopped him from introducing evidence to the contrary.

In this view of the case, it would seem to follow, that this presumption of right could exist so long only as the possession, which was the evidence of it, continued. - This may have been the supposed necessity, in the two cases referred to from New York, of proving ■the continued possession of the defendant in- the execution, until the time of the trial—and, thereby, creating the presumption, that his tenancy, or other interest, was to endure longer.

On this principle alone, could the well established rule have been preserved, that a plaintiff must recover on the strength of his own title, and that it must, prima, facie be a legal interest.

As respects the right of a tenant to notice to quit, it is sufficient, on the present occasion, to remark, that, according to the modern doctrine, tenancies at will can only be created between individuals, by express grant or contract; and that all general tenancies, are, constructively, tenancies from year to year. a The same learned commentator further says— “ The tenancy can not be determined, except at the end of the year.” That “ the English rule of six months’ notice, prevails in New York ; but there is a variation of the rule, or perhaps no established rule on the subject, in other parts, of the United States.” He maintains, however, that where neither custom nor the particular agreement, has fixed the time, reasonable notice under the circumstances, should be given, and that the term would not necessarily be the a same to a tenant of a house, and a tenant of a farm.

The term of six months notice not having been established in this State, if the right to it in New York had any influence on the case of Klien vs Graham, it has not necessarily the same here. Another case was cited in argument, in favor of the conclusive effect of a sheriff’s title. It was the case of Jackson vs Sternberg.

Of this, it is sufficient to say, the opinion of the Court declared that a sheriff’s deed was per se evidence of title in the grantee: and that parol evidence was inadmissible, to contra-* diet the recital, or to show that the land was sold under a different execution and judgment, than those recited in it.

But, it was also said, that such evidence would be admissible to show a fraud in the sale; and it is quite clear, that by the above assertion of title in the grantee, is only meant such title as resided in the defendant in the execution, and whenever it can be legally shewn, that he had none,, no benefit can be derived from the purchase.

The notice I have taken of the cases referred to, has not been done from an impression, that they necessarily govern the present, if their authority be admitted; nor for the purpose of rejecting their authority ; but to show how they must be understood, to be reconciléable with the general law, regulating real estates — particularly the rule, that a plaintiff can only recover on the strength of his own legal title, either, absolute or limited — that these cases have been carried, at least, to the utmost legal extent, and that it would be unsafe and unwarranted, so to extend the principle, as to embrace the case before us, because of the difference in the state of facts— which difference mainly is, that here is a co-defendant, who was subject to no estoppel — that there was proof of an out-standing title, and that both defendants had held under that alone.

Also, that it does not appear here, that the defendant in execution continued in possession for any term of time, after the institution of this suit, so as to continue the presump-_tion of right in him, barely from his naked possession, as in the other cases. The authority referred to in Tho. Colee, (431,) that every estoppel ought to be reciprocal — that is, to bind both parties ; and the reason assigned for it— that a stranger should neither take advantage of, nor be bound by it — -does not prejudice this defence.

It is conceived rather to strengthen it, in as much as the estoppel did not apply to one of the defendants; and the evidence which he had a right to introduce, destroyed the plaintiff’s right, independent of any merit in the defendent in the execution, or the de-fence, so far as he was concerned. I am, therefore of opinion, that the doctrine of es-toppel is not conclusive in this case, and that the right of the plaintiff to recover, depended on the legality of the out-standing title, to establish which,. the evidence was introduced. On this point there is conceived to he hut little difficulty.

The question of fraud was submitted exclusively to the jury ; and the only remaining question is, as to the effect of the conveyance from the administrators of Johnson to Andrew Eastis, after the latter had conveyed to William Eastis — Whether or' not,the conveyance to the former, under the circumstances, inures to tlie benefit of the latter. The case of Aldridge vs Kincaid, is fully in point.

It was there' ruled, that a title acquired by a vendor of land, subsequent to his sale and conveyance, will inure to the use of his vendee; and that, for the benefit of the vendee, will every deed which he may take after such sale and conveyance, be construed to have been taken by him. As this is believed to be the current doctrine, in the United States and in England — and it could be shewn by various authorities — and, as it was not particularly contested in argument, I decline a further investigation of it; but assume the principle. A consequence of these views is, that the judgment below must be affirmed.

In this opinion, the Court are unanimous. 5 Johnns.R. 256. 3 Caines's Rep. 188. 1Johns.C. 152. 4Kent’s C 210. 4Kent’s C 111, note a, 112. 20 Johns. Jtep. 49. 2Lit. 390.