Bernstein v. Humes

¶1Many of the questions that have been argued with much ability, are not so presented that we can consider, them. The affirmative, general charge given covers all, or most, of the questions raised by the evidence. There was a *597general exception to this charge, without specifying any particular part or parts objected to. Many of its propositions are clearly free from error; and under a well-established rule of this court, we will not dissect it, with a view of ascertaining if there may not have been error in some of its utterances. Exceptions to a general charge, unless all be erroneous, must point out the parts objected to, else we will not consider them.—Owens v. The State, 52 Ala. 400; South and North Ala. R. R. Co. v. Jones, at December term, 1876.

¶22. The defendant interposed several pleas, and among them the general issue, “ not guilty.” He had also entered a disclaimer, denying that he was in possession of the lots sued for, at the time the action was brought. These defenses are incompatible, and one must overrule the other. A plea of not guilty “ is an admission by defendant that he is in the possession of the premises sued for.” — Code of 1876, §§ 2962-3. It is equivalent to the consent rule, which required the defendant, as a condition to controverting lessor’s title, to admit the truth of the fictitious averments of lease, entry, and ouster. — See 24th Rule of Practice in Circuit Courts; King v. Kent, 29 Ala. 542, 556; Clarke v. Clarke, 51 Ala. 498; Sledge v. Swift, 51 Ala. 386. Under the case last cited, the defendant might have been forced to admit his possession of the premises; and refusing, his pleas might have been stricken out. We suppose this question was not brought to the notice of the Circuit Court. Had it been done, the court would have offered to the defendant the option of adhering to his disclaimer, and abandoning his pleas, or of entering into the consent rule, and going to trial on his hleas. We feel bound to hold that, by interposing the plea of not guilty, the defendant must be held to have waived his disclaimer, and to have admitted himself in possession. So, the defense that defendant was not in possession when the action was brought, in whatever form presented, will not be further noticed in this opinion. This disposes of defendant’s charges numbered 2, 3, 12.

¶33 Several charges were asked and refused, which, in terms, referred the question of construing deeds to the jury. Charges numbered 16, 17, 18, 21, and 23, are of this class. It is the duty of the court to construe written instruments, and it is error to refer such question to the jury.—See Price v. Mazange, 31 Ala. 701; Taylor v. Kelly, Ib. 59. The court did not err in refusing these charges.

¶44. Charge No. 22 is somewhat obnoxious to the same objection. Asked, as it was, in connection with the charges last commented on, it was doubtless intended, and would have been so understood by the jury, as referring to them *598the construction of some deed. Many deeds were in evidence, and the charge failed to inform the jury, and fails to inform us, what deed — it used the singular number. — was referred to. The language of the charge is, “Plaintiffs can not prove any extraneous circumstances, not referred to in his deed, to identify and locate the lot, when the description in the deed shows upon its face that it is void for uncertainty.” The charge speaks of his, the plaintiffs’, deed. The most natural inference is, that this refers to the deed made by "Walker to plaintiffs. Yet, there is nothing uncertain or ambiguous in the description of the land it conveys. We think this charge objectionable on two grounds: first, it refers to the jury the construction of a deed; and, second, it is indefinite, and its tendency would have been to mislead the jury. — 1 Brickell’s Dig. 338-9, §§ 36, 59, 60,'61.

¶55. Charges 11, 13, 24 and 25 relate to the statute of limitations of ten years. This action was commenced July 12, 1871. We know judicially that the late civil war prevailed from 1861 to 1865 ; and the statutes of limitation were suspended from January 11, 1861, to September 21,1865 ; four years, eight months, and ten days. This suspension occurred, mainly, within the ten years immediately preceding the bringing of this suit. To effect a bar, at the time shown in this record, the adverse holding must have continued fourteen years, eight months, and ten days. Yet, each of the charges fixes the requisite time at ten years. These charges were all rightly refused.

¶6We have now disposed of all the charges, except the 4th, 5th, 7th, 8th, and 9th. These we will consider hereafter. It is contended for appellant, that he should have been allowed to show outstanding title in Donegan and Hammond. Eor this purpose, he offered in evidence the mortgage, or trust deed, made June 1, 1861, by the “Huntsville Hotel Company,” to Donegan and Hammond, by which it is claimed the lots in controversy were conveyed, leaving only an equity of redemption in the hotel company. Plaintiffs claim derivatively under the hotel company, by marshal’s sale under execution against the company, made in 1870, purchase at such sale by Walker, and conveyance by him to plaintiffs before this suit was brought. In connection with this mortgage, defendant offex'ed the testimony of Col tart, and proposed to prove by him that, when the marshal exposed said property for sale, he proposed to sell only the interest of the said hotel company, subject to said mortgage to Donegan and Hammond. These two instruments of evidence were offered jointly, and each separately; and in each *599form it was ruled out, on the objection of plaintiffs; and in each form, the question is presented by exception.

¶7The mortgage, or trust deed, conveys the real and personal property of the Huntsville Hoteí Company, to secure the payment, both interest and principal, of thirty-five thousand dollars of bonds the company proi^osed to issue, with eight per cent, interest, payable semi-annually; the principal of the bonds to be due and payable in five equal installments, of seven thousand dollars each, due on the first of January from the years 1872 to 1878, each inclusive. But the mortgage, after the granting clause, contains this language : “ But, nothing herein contained shall be so construed as to prevent the Huntsville Hotel Company from using the building for hotel purposes, renting, and receiving-pay therefor, of any part of said building not necessary for hotel, nor from disposing of any part of the lot or grounds upon which said building is situated, which may not be required for the use of said hotel; nor from using any furniture, stores, or fixtures, which may be necessary in conducting the business of said company, provided that no default shall have been made in the payment of the interest and principal of said bonds.” The record no where informs us that the hotel company had made default in the payment of I interest or principal of the bonds — (no part of the principal) was due when this suit was brought) — that they had been disturbed in the quiet enjoyment of the property, or that Donegan and Hammond had asserted any right to the posj session; and there was no offer to prove either of the above facts. f

¶86. If the mortgage had reserved no right of possession in the mortgagor, or had been an ordinary one fixing a law-day, ’and that day had passed; then, under our rulings, there would have remained in the hotel company only an equity; and neither Walker, by his purchase, nor any one in his right, would have acquired any legal title, which is necessary to maintain ejectment; and in such case, the mortgage would constitute such outstanding title in a stranger, as would defeat a recovery, on a title such as these plaintiffs rely on. But the present mortgage is different, It secures the possession and enjoyment in the mortgagor, until default is made; and it reserves to the mortgagor powers and rights of use and disposition not often found in mortgages. Until default was made, there was clearly a legal right to hold and occupy the property, which was subject to levy and sale; and such sale, in the absence of other proof, would vest in the purchaser a right to maintain ejectment against any one who did not show a paramount title,—Paulling v. Mead, *60032 Ala. 11; Barker v. Bell, 37 Ala. 354-8; Pryor v. Butler, 9 Ala. 418.

¶97. It is contended that the present action can not be maintained, because plaintiffs’ deed from Walker — the title they rely on — was executed while the lots in controversy were adversely held and occupied by defendant, under claim of right. Charges 4, 5, 7, 8, and 9, seek to raise this question. It is fairly presented in the last four, if the facts of this case justify the application of the principle. The admitted facts, on which this question arises, are — that Walker purchased at the marshal’s sale, not for himself, or in his own right, but in trust for Mrs. Chapman, mother of the plaintiffs. The money and means with which the purchase was made, were furnished by Eeuben Chapman, her husband, and the title was made to Walker, in trust for Mrs. Chapman, at the request of Mr. Chapman. Walker neither paid, nor incurred liability to pay, any money; and the record fails to inform us for what purpose the title was taken in him, instead of Mrs. Chapman. Mrs. Chapman soon afterwards died, leaving the title in Walker; and soon after this Walker conveyed by quit-claim all the interest he had in the lands, to the plaintiffs, reciting substantially the above facts, and that the title was conveyed to the heirs of Mrs. Chapman, at the request of Eeuben Chapman,’ and the said Eeuben indorsed on the deed his written assent to such conveyance. This conveyance, it is alleged, is obnoxious to the charge of maintenance, and therefore inoperative to convey the title. The testimony tends to show that, at the time this conveyance was made, Bernstein, by his tenant, was in possession of the land sued for, and asserted ownership and dominion over it; and it is contended that the conveyance was nothing more than a transfer of a right to sue, and therefore it will not support an action.

¶10Against this view it is answered, that Walker had no interest in the premises — held the title in the nature of a naked trust; was compellable in equity to convey the title to Mrs, Chapman, his cestui que trust; that, in conveying title to her heirs-at-law, she being dead, he voluntarily did only what equity would have compelled him to do; that equity approves and regards as well done, that which ought to have been done; and that therefore this conveyance does not fall within the influence of the rule against maintenance. To this it is replied, that by the death of Mrs. Chapman — intestate, so far as we know — Eeuben Chapman, her surviving husband, became entitled to a life-estate in the premises in controversy ; and that the deed of Walker to plaintiffs, made as it was by the “ written request,” and under the “ instruction *601and direction ” of Beuben Chapman, indorsed on the deed, is more than a mere execution of what equity would have compelled him to do; that it is a conveyance to them of the life-estate of said Chapman, which they did not previously own, either legally or equitably; and that, therefore, the deed was but a transfer of a right to recover the property by suit, which has all the qualities of maintenance.

¶11The question we are required to decide is founded on a very ancient doctrine, partly common law, and partly statutory. In Coke upon Littleton, 369 a, it is said, “ that feoffments made for maintenance shall be holden for none, and of no value ; so as Littleton putteth his case, at the common law; . . but some have said, the feoffment is not void between the feoffor and feoffee, but to him that hath right.” This author adds, speaking of the statute of 32 Henry 8, ch. 9: “Since Littleton wrote, there is a notable statute made in suppression of the causes of unlawful maintenance (which is the most dangerous enemy that justice hath), the effect of which statute is — first, that no person shall bargain, buy, or sell, or obtain any pretended rights or titles ; secondly, or take, promise, grant, or covenant, to have any right or title of any person, in or to any lands, tenements, or heredita-' ments; but, if such'person, which so shall bargain, &c., their ancestors, or they by whom he or they claim the same, have been in possession of the same, or of the reversion or remainder thereof, or taken the rents or profits thereof by the space of one whole year, &c., upon pain to forfeit the whole value of the lands, &c., and the buyer or taker, &c., knowing the same, to forfeit also the value. Thirdly, provided that it shall be lawful for any person, being in lawful possession, by taking of the yearly farm, rents, or profits, to obtain and get the pretended right or title, &c., of any lands, whereof he or they shall be in lawful possession.” So, in Cro. Eliz. 445—Upton v. Bassett—the court said, “A feoffment upon maintenance or champerty is not void against the feoffor, but against him who hath right.”

¶12It is manifest that this doctrine of the common law, emphasized and made more efficient by statute, had its origin in the Feudal times, when feudal barons exercised power and authority over their vassals, and over the machinery of civil government, only subordinate to the will of an arbitrary king. The necessity for such legislation does not exist in this country of free constitutions, as it did in England, when the haughty feudal lords governed, within their sub-dominions, with despotic rule, and frequently made war, and often! successfully, upon their own sovereigns. Hence, the forfeitures, and the denial of the right to aid a suitor by money *602or advice in prosecution or defense of Ms rights, have never been engrafted on our jurisprudence. But, two of the principles of the common law and English statute, noted above, have been adjudged to be of force in this State: first, champerty, not necessary to be considered here (See 1 Brick. Dig. 334); second, a denial of the right to sell or buy real or personal property, the right to which exists only in action, and to maintain a suit in the name of the purchaser. This is treated as a species of maintenance, and is everywhere adjudged to be a complete bar to a suit by the purchaser, to recover such property, or damages for tortious injuries done to it. Damages caused by torts can not, in the ordinary acceptation of the term, be the subject of private bargain and sale.

¶13In Pryor v. Butler, 9 Ala. 418, this court said: “ The right acquired by Bullard, who purchased at the sale made under the mortgage, was a right to recover the lot by suit, if the possession was in another, and the possession was withheld. This right to sue, he could not transfer to another. It is an ancient doctrine of the common law, that nothing which lies in action, entry, or re-entry, can be granted over.” To the same effect, see Dexter v. Nelson, 6 Ala. 68; Abercrombie v. Baldwin, 15 Ala. 363; Abernathy v. Boazman, 24 Ala. 189; David v. Shepard, 40 Ala. 587; Hines v. Chancey, 47 Ala. 637. See, also, this point in Coleman v. Hair, 22 Ala. 596. See, also, Gibson v. Shearer, 1 Murphy, 114; Hadley v. Geiger, 4 Halst. 225; Williams v. Hogan, Meigs, Tenn. 187; Allen v. Smith, 1 Leigh, 231; Martin v. Pace, 6 Blackf. 99; Dubois v. Marshall, 3 Dana, 336; Jackson v. Demont, 9 Johns. 55; Van Hoesen v. Benham, 15 Wend. 164; Rawle on Covenants, 65. And it is settled in this State, that, to avoid a deed thus made by one out of possession, it is enough if there be one in adverse possession, exercising acts of ownership, and claiming to be rightfully in possession. Color of title is not necessary. On the subject of transfer of mere rights to sue, see 1 Chitty’s Pl. 17, 66; 1 Addison on Contracts, § 257. _

¶14_ In Tyler on Ejectment, commencing at page 935, is a pretty full discussion of this doctrine. He states it as “a general rule of the common law, that a conveyance of land, by a person against whom it was adversely held at the time of making it, is absolutely void; and the reason of this rule, according to an ancient authority, is ‘ for avoiding of maintenance, suppression of right, and stirring up of suits; ’ and therefore nothing in action, entry, or re-entry, can be granted over.” Absolutely void is too strong a phrase. Suph conveyance is good and binding, at least by way of estoppel, between the parties. The same author remarks, citing many *603authorities, that, “so far as the law declares that a conveyance by a person out of possession, where the land is held adversely to the grantor, is void, the rule is quite generally recognized in all the American States.”

¶15In White & Tudor’s Leading Oases, 4th Amer. ed., vol. 2, part 2, page 1631, is a very full discussion of the doctrine, English and American. It is there said: “ The rule, that land held adversely shall not be granted, was too deeply fixed in the common law, to yield to the novel doctrine, that rights of action are not less objects of commerce, than rights attended with possession; and the assignment of a right of entry, or a contract made in consideration of such transfer, is still, in many of the States, invalid.” The annotators cite many authorities in support of this proposition, and, among others, Poe v. Davis, 29 Ala. 676; an opinion by Chief Justice Chilton, in which he places the doctrine against champerty and maintenance on very elevated ground. Among other strong expressions found in C. J. Chilton’s opinion, is the following, quoted from Lord Abinger in Prosser v. Edwards, 1 Younge & Col. 484: “All our cases of maintenance and champerty are founded on the principle, that no encouragement should be given to litigation, by the introduction of parties to enforce those rights, which others are not disposed to enforce.” Commenting on a relaxation of the doctrine which will be found referred to in Tyler on Ejectment, and White & Tudor’s Leading Cases, supra, O. J. Chilton said : “Some of the recent cases do, indeed, relax the rules which have heretofore obtained; but we apprehend, when fully considered, they do not go the length of breaking down the barrier which the wisdom of ages has erected against the perversion of the cause of justice, by opening a door for strangers to come in and interfere in suits in which they have no interest, aside from the agreement they may make to maintain them.”

¶16The language of the New York statute is, “ Every grant of lands shall be absolutely void, if, at the time of the delivery thereof, such lands shall be in the actual possession of a person claiming under a title adverse to that of the grantor.” It will be observed that, under this statute, the adverse holding, to avoid a conveyance made by one out of possession, must be •under a title. Adverse holding under claim of ownership is not enough. The claim, to avail, must be under some specific title. Under this statute, the rulings in that State have somewhat relaxed the rule.—See Crary v. Goodman, 22 N. Y. 170; Laverty v. Moore, 38 N. Y. 358; Livingston v. Peru Iron Co. 9 Wend. 511. In Requa v. Holmes, 26 N. Y. 338, and Thalheimer v. Brinkerhoff, 3 Cow. 623, the relaxation of *604the rule is carried to a doubtful length. Our rulings have been steadfast and uniform, and have maintained throughout that there can be no action maintained by a transferree of the title, against one in possession, claiming adversely at the time of the transfer. The principle, with us, rests on the common law, and does not require that the adverse holder shall claim under a specific title : sufficient that he is in possession, asserts the right to retain the possession, and that his claim is adverse to that of plaintiff’s grantor.

¶17It will be observed, in the many cases on this question, we do not encounter the expressions vendor, or purchaser, except in contradistinction to a transmission of title by descent. The latter change of title is effected by the law, and does not fall within the rule. Conveyance, grant, deed, transfer; these are the words we meet with. The right to sue can not be conveyed, transferred, or granted to another, is the language of the courts. Such is the language employed in our adjudged cases.

¶18In the case of Clay v. Wyatt, 6 J. J. Marsh. 583, Green Clay, in consideration of $100, and natural love and affection, conveyed to his sons various tracts of land. Part of the land so conveyed was, at the time, in the adverse possession of Wyatt, against whom an action of ejectment was instituted, by the sons. The court said: “ That the deed is void, so far as it may operate upon the land in the adverse possession of Wyatt, according to the literal meaning of the act, is too plain to admit of any doubt. But it is contended, that such a deed as the present, being obviously intended by the grantor for the advancement of his children, does not come within the spirit of the act, and that the legislature used the word purchase in its popular, and not in its technical sense; wherefore, it is insisted, that the deed is not void. The principal object of the legislature, in passing the act in question, was to protect the occupants of land. A father might have claims which he would be unwilling to litigate in his own name, because of his liability for costs, and which he would willingly transfer to a son, a nephew,' or a cousin, in consideration of natural love, and afford him an opportunity to profit by the litigation. Such a transaction would tend to defeat the main object of the legislature, which was, to throw obstacles in the way of asserting doubtful rights, to the prejudice of occupants; and hence we think the policy of the act includes voluntary conveyances, as well as those founded on valuable considerations.” This asserts a sound rule, and gives sound reasons in support of it.

¶19In the present record, according to the agreed facts, at the death of Mrs. Chapman, Mr. Chapman, her husband, became *605entitled to a life-estate in tbe property in controversy. The conveyance by Walker to tbe plaintiffs, made by tbe procurement and direction of Obapman, is tbe equivalent of a conveyance by tbe latter of a life-estate in tbe premises; for that was the quantum of his interest. That life-estate, so long as Chapman lived, was the only right, outside of Walker, tbe trustee, which could litigate, at tbe time, the right to tbe property. That right, and tbe legal title transferred to them by Walker’s deed, constitute plaintiffs’ sole right to maintain this suit. These being the facts, if, at the time Walker made his deed, Bernstein, or his tenant, was in adverse possession, claiming right to such possession, thei plaintiffs can not maintain this suit. The 8th charge askec. should have been given.

¶20Three points we abstain from considering, as not being presented by this record : First, the construction of Acklen’s deed, and those in continuation, conveying part of lot 17, fronting 50 feet on Gallatin street, whether void for uncertainty; second, whether Mrs. Hill’s deed, and those down to Bernstein, embrace the lot in controversy; third, whether Bernstein’s possession is sufficiently connected with Mrs. Hill’s, to authorize the tacking of hers to his, to make out the bar of tbe statute.

¶21For tbe single error above pointed out, tbe judgment of tbe Circuit Court is reversed, and tbe cause is remanded.