Elmore v. Harris

COLLIER, C. J. The questions in this cause are — 1. Has the purchaser of land, who has made full payment for it, entered into and retained the possession, but who has no other evidence of title than a bond conditioned to make him a conveyance in due form, such an estate as may be sold under a fieri facias ? 3. Where land is sold under a fieri facias against the husband, and an action is brought against him by the purchaser, is it allowable to permit the trustee of the wife to defend with, or instead of, the husband, unless he shows prima facie that he has a title, as trustee, superior to and independent of that which was sold under thefi. fa.? [363] 1. In Doe ex dem. Davis v. McKinney and McKinney, the question whether an equitable interest in lands could be sold under execution, was directly presented, and we there considered the effect of the acts of 1812 and 1820. The first statute makes lands subject to the payment of judgments and decrees, and clerks are required to frame the executions accordingly: Further, “ the sheriff or other officer selling any real estate, shall make a title to the purchaser, which title shall vest in the purchaser all the right, title and interest which the defendant had in and to such real estate, either in law or equity.” This enactment we said was restricted in its operation by that of 1820, which provides that “ no other than the legal to land or other real estate, shall hereafter be sold or conveyed by virtue of any execution.” Also, that “ the equitable title or claim to land, or other real estate, shall hereafter be liable to the payment of debts, by suit in chancery, and not otherwise ; and when a bill shall be filed for that purpose, all persons concerned in interest shall be made parties thereto.” We were inclined to think, that under the first statute it would have been no objection to the sale of lands under execution, that the defendant had only an equitable title ; but were of opinion it had been repealed in part by the later act. This we said was “ explicit in its terms, and does not leave the intention of the legislature to be ascertained by construction. It inhibits the sale of an equitable title under execution, and refers the creditor to chancery for an authority to sell it. The occupant of land with such a title, we think, cannot be regarded as having a distinct and independent possession, which may be levied on, but his possession is so intimately connected with the title, that it cannot bé sold under execution, so as to transfer an interest to the purchaser.” The case cited was elaborately considered, not only with a reference to all our previous adr judications on the question, but also to the decisions from New York ; and we have ever since adhered to it as a satisfactory exposition of the law. See also Whiteside, et al. v. The Branch Bank at Decatur, 10 Ala. Rep. 249. It has been also held, that the mere occupation or possession of land which cannot ripen into a legal estate, is not such an interest as can be sold under execution. Rhea, Con [364] ner & Co. v. Hughes, 1 Ala. Rep. N. S. 219. In Doe ex dem. Heydenfeldt v. Mitchell, 6 Ala. R. 70, it was shown that the defendant had been in possession of land for several years, built a house, and made other valuable improvements thereon, and we decided that the inference was, that his occupancy was legal, and his estate such as might be sold under execution; if this inference was unauthorized, it devolved on the defendant to show it. These cases are entirely reconcilable with each other, and are all well supported by authority. It is enacted by statute in Mississippi, that “ estates of every kind holden or possessed in trust, shall be subject to like debts and charges of the persons to whose use, or to whose benefit they were, or shall be respectively holden or possessed, as they would have been subject to, if those persons had owned the like interest in the things holden or possessed, as they own, or shall own, in the uses and trusts thereof.” Again, “ when the sheriff shall sell lands and tenements, it shall be his duty to make such deeds as may be necessary to vest in the purchaser the right, title, interest, claim, and demand of the debtor, or defendant, either in law or equity.” Under these enactments it has been decided, that where a person has a bond in which the obligor stipulates to make him a title bond, on payment of the purchase money, when he pays the purchase money, he acquires such an estate in the land as may be sold under execution ; and the purchaser at sheriff’s sale of land thus situated, acquires the same equitable interest in the land, which the judgment debtor had; but the legal title being outstanding, he cannot maintain ejeetment to recover the possession — he must come into equity to enforce his right. Thompson v. Wheatley, 5 S. & Mar. Rep. 499. In Goodwin v. Anderson, et al. Id. 730, it was determined that the vendee of real estate who has only a bond for title, when the purchase money is paid, and who has paid but part of the purchase money, has not such an interest as is subject to seizure and sale under an execution at law. It is made a question whether a purchaser of land under execution against the vendee thereof, who has only a bond for title, when the purchase money is paid, is entitled [365] to be substituted to the place of the judgment creditor to the extent of his bid at the sale under execution. See 5 Har. & Johns. R. 164; 8 East’s Rep. 481; 5 Bos. & Pul. R. 461; 7 Smedes & Mar. Rep. 15, 630; 1 Yerg. Rep. 3, 79; 13 Pet. Rep. 298; 4 McC. Rep. 340; 1 Dev. & Bat. Rep. 52; 4 Dev. Rep. 174; 3 Cow. Rep. 81; 19 Wend. Rep, 414; 8 Ohio Rep. 21; 2 N. Hamp. Rep. 16; 9 Wend. Rep. 20; Conn. Rep. 226; 2 Leigh’s Rep. 280; 4 Smedes & Mar. Rep. 163. It is the result of our decisions, as well as several of the citations we have made ; especially the cases from the Mississippi reports, that the defendant had no such estate in the premises in question as could be sold under execution; . and that the plaintiff did not acquire a title by his purchase and the sheriff’s deed, on which he could maintain an action at law, to recover the possession. 2. The conclusion attained upon the first point relieves us from the necessity of giving to the second an extended examination. We have heretofore elaborately considered the right of a party claiming an interest in lands sought to be recovered by action, to be let in to defend his title, and the character of the defence he is permitted to interpose. In the present case, it is not possible that the plaintiffs have been prejudiced by the order permitting Forest to be made a party to the record, that he might assert the rights of his cestui que trust, Mrs. Harris; for we have seen that the plaintiff had no legal title, and could not recover, irrespective of the claim set up by the intervening defendant. Doe ex dem. Davis v. McKinney and McKinney, ut supra; Thompson v. Ives, 11 Ala. Rep. 239. These cases are so direct and full, that we need add nothing more. The judgment of the circuit court is consequently affirmed.