Betz v. Mullin , 62 Ala. 365 ( 1878 )

BRICKELL, C. J.

An action of ejectment was originally at common law, a personal action of trespass, and while retaining that form, would have been properly classified as an action ex delicto. In this State, it has always been a mixed action for the recovery of land, and damages for its use and occupation, whether the right is simply possessory or a right to the freehold itself. The Code of 1852 abolished all common law forms of action, and substituted for them the simple forms it provided. A real action, in the nature of an action of ejectment, to recover the possession of land, in which damages for the possession or use and occupation were to be computed to the time of the verdict, was substituted for all common law real actions, whether droitural or possessory. — Ivey v. Blum, 53 Ala. 172. In 1863, the common law action of ejectment was revived, and parties were given the election to pursue it or the statutory action. Whether the common law action of ejectment or the statutory real action is pursued, the issues are the same, and the plaintiff must recover on the strength of his own title, and is bound to show that at the commencement of the action, he had a legal title, entitling him to immediate possession, and that the defendant was then in possession.

2. The statute declares husband and wife must be joined, either as plaintiffs or defendants, when the wife has an interest in the subject matter of the suit, unless the suit relate to her separate estate, when she must sue or he sued alone. — Code of 1876, § 2892. The latter clause of the statute is in abrogation of the rule of the common law, that a feme covert could not be sued alone. The appellant and her husband were in possession of the lands in controversy, when the present, a statutory real action, was commenced. The title, or estate, under which the possession was taken and held, resided in the wife, and was her statutory separate estate. The possession must be referred to the title, and she was therefore suable alone. The title may be invalid; it may be subordinate to the title of the appellee, and may be incapable of protecting the possession against his right of entry. The test of her liability to suit alone, is not the validity but the nature and character of her title. If that devolves on her a statutory separate estate, as between her and her husband, the statute is imperative that she must be sued alone, having full opportunity to defend it, and in a relation to be concluded by the judgment which may be rendered. How far the husband may now be liable for the torts of the wife, or the mode of taking advantage of the nonjoinder of the husband, if the wife is sued alone in an action ex delicto, are not questions now involved. The suit relates to the separate estate of the wife, and she was, under the statute, suable alone.'

3. The complaint contains a sufficient cause of action, describes the lands accurately, averring that the defendant entered thereupon and unlawfully withheld and detained the same. The verdict is general, finding the issues for the plaintiff. The verdict must be referred to the issues, and when so referred, it is certain, and would not have been more so if it had mentioned the lands. — Hamner' v. Eddins, 3 Stew. 192.

4. It is only by operation of the statute of registration, that a junior conveyance can have priority over a senior conveyance of the legal estate. If the senior conveyance is recorded within three months after its date, the statute preserves its priority .over a junior conveyance that may be earlier recorded, though the junior grantee may not have notice of it, and it is supported by a valuable consideration.

The rulings of the Circuit Court, to which exceptions were taken, conformed to these views, and the judgment must be affirmed.