
    Rottenberry v. Brown, et al.
    
    
      Statutory Action of Ejectment.
    
    1 Ejectment; what necessary for plaintiff to recover; relevancy of deed to third party. — In an action of ejectment, in order for the plaintiff to recover be must show that be bad title at the commencement of the suit, and on to the time of the trial; and therefore a deed executed by the plaintiff prior to the institution of the suit, conveying the land to a third party, which deed was regularly acknowledged and recorded, is not subject to be excluded from evidence upon the ground that it was irrelevant.
    Appeal from the City Court of Birmingham.
    Tried, before the Hon. Willtam W. Wilkerson.
    This was a, statutory action brought by the appellant, John C. Rottenberry, against the appellees, Hiram W. Brown and W. M. Martin, to recover certain lands specifically described in the complaint. The plaintiff based his right of recovery upon the tax deed made by the State Auditor. The facts relating to the admission of a deed from the plaintiff to a third party prior to the institution of the suit, are sufficiently stated in the opinion.
    The cause was tried by the court without the intervention of a jury, and upon hearing all the evidence the court rendered a judgment in favor of the defendant. The plaintiff appeals and assigns the rendition of this judgment as error.
    Daniel Collier and Marvin T. Ormond, for appellant.
    Walker, Tillman, Campbell & Walker, and W. M. Martin, contra.
    
   SIMPSON, J.

This was a statutory action of ejectment, commenced January 29th, 1901, and the defendant introduced, in evidence a deed executed by the plaintiff and his wife on the 20th day of September, 1898, conveying the land in question to J. M. Rottenberry. No objection was offered to the introduction of this deed except on’the ground that it was irrelevant, which was properly overruled. The deed was regularly acknowledged and recorded. No testimony was offered to show that J. M. Rottenberry had ever reconveyed said lands to plaintiff.

In order to recover in an action of ejectment, the plaintiff must show title at the commencement of the suit and on to the time of trial. — Cofer v. Shening, 98 Ala. 338; Bruce v. Bradshaw, 69 Ala. 360; Scranton v. Ballard, 64 Ala. 403.

The judgment of the court is affirmed.

McClellan, C. J., Tyson and Anderson, J. J., concurring.  