Abernathy v. Boazman

CHILTON, C. J. The px-incipalquestion in this case for our decision is, whether the deed from Abernathy to Boazman, executed while Kyle, a third party, was in the adverse possession of the land, is void as between the parties to it. That it is void as to third persons, is too well settled to be [193] controverted ; but the counsel for the plaintiff in error insists, that it is void as between the parties, and that, if such was not the general rule, it would be void in this particular case, inasmuch as Boazman, the vendee, was the party in possession, as the tenant of Kyle, at the time the deed was made. We have looked into the cases which bear upon this point, and we are satisfied that the weight of authority is decidedly adverse to the view taken by the counsel for the plaintiff in error. Judge Kent, in commenting upon this point, remarks : “As the conveyance, in such a case, is a mere nullity, and has no operation, the title continues in the grantor, so as to enable him to maintain an ejectment upon it; and the void deed cannot be set up by a third person to the prejudice of his title.” But he adds : “ As between the parties to the deed, it might operate by way of estoppel, and bar the grantor. The deed is good, and passes the title as between the grantor and granteeand this, he says, is the language of the old authorities, even as to a deed founded on champerty or maintenance; citing Bro. Tit. Feoffments, pl. 19; Fizherbert J., in 27 Hen. VIII, fo. 23 b, 24 a ; Cro. Eliz. 445; Hawk, b 1, c. 86, & 3. The same doctrine is asserted in Jackson v. Demont, 9 Johns. Rep. 55, 60, where it is said to be a principle which runs through the books, that a feoffment upon maintenance or champerty is good as between the feoffor and feoffee, and is only void against him who hath right. The same principle was reaffirmed in Livingston v. Peru Iron Co., 9 Wend. Rep. 510, 516, where Savage, C. J., says, he considered it too well settled to admit of doubt. —See also Den v. Geiger, 4 Halstead N. J. Rep. 225, 235, where the authorities are collected. In Abercrombie v. Baldwin, 15 Ala. Rep. 371, C. J. Collier, in delivering the opinion of the court, incidentally remarks in the argument, “ Such a sale, it is said, is void for all purposes, not only as against the adverse possession or title, but as between the parties themselves citing Williams v. Hogan, Meigs’ Rep. 187. It may be observed, however, that the case referred to was a decision based on a statute of Tennessee. It is, however, needless to dwell on this point, since we had occasion to examine it at the last term of this court, in the case of Harvey v. Doe, ex dem. Harvey and Carlisle, 23 Ala. 637, and there held, that while the deed was void as to third' parties whose right was [194] affected, it was valid as between the parties. It may not be amiss now to add, that the reason for avoiding the deed as to third parties, does not apply as to the parties to the conveyance. 2. The proof made by Points, that Kyle was in possession, by Boazman as his tenant, could not have affected the case in any way, and was properly excluded. Concede that both parties to the deed knew of the adverse claim of Kyle, and that there was no fraud; still, as we have seen the deed is valid inter partes, this does not relieve Abernathy from the liability to make good his covenants as to the title. — He assumed the burthen of extinguishing all paramount titles, so as to make that which he attempted to convey available. Let the judgment be affirmed.