
    PRICE et als. vs. TALLEY’S ADM’RS.
    
      1. To maintain the action of detinue the plaintiff must show that lie is entitled to the entire property, either general or special, in the thing sued for. If others, not joined, are interested with him, he cannot recover.
    2. A sale by the tenant for life of the absolute property in a chattel converts the interest of the remainder-man into a chose in action, — the transfer of which, with a knowledge of the fact that the chattel is in the adverse possession of the purchaser, under a bona fide claim of the entire title, is void, and passes nothing to him to whom such transfer is made.
    Error to the Circuit Court of Jackson. Tried before the Hon. Geo. Goldtlnvaite,
    This was an action of detinue to recover a slave named William, and was instituted by William J. Price, Elisha Price, Oliver Hughes, John R. Hughes, William J. Hughes and John E. Hughes, heirs at law of Polly Woods, deceased, against Jacob Talley. The defendant having died, pending the suit, it was revived against his administrators. On the trial, as appears by the bill of exceptions, the plaintiffs read in evidence a deed in the following words: “Know all men by these presents, that I, Richard Price, of Warren county, and State of Tennessee, for and in consideration of the natural love and affection I have for my daughter, Polly Woods, I have bargained, sold and delivered to her a negro girl named Mary and her child named Patty, with their increase; to have and to hold the said negra slaves during the natural life of my said daughter and her present husband, Drury Woods, or the survivor of them; and at the death of the said Polly and Drury Woods, the said negro slaves, with their increase, are to be returned and delivered to the right and legal heirs of said Polly Woods; it being the intention of this instrument to convey a life estate in said slaves to my said daughter and son-in-lav/. And I do hereby warrant and defend said negro slaves to the said Polly and Drury Woods, from the claims of all persons whatsoever. In witness" whereof, I have hereunto set my hand and seal, this 4th day of April 1810. — Rich’d- Price, [seal.”] They then proved the death of Polly and Drury Woods, that they were the heirs at law of said Polly, and that the slave sued for is the son of the woman Mary named in the deed. The defendants proved that their intestate recovered a judgment against the said Drury Woods in his life-time in a justice’s court, and that the slave sued for, then five or six-years of age, was sold by a constable under an execution issued on said judgment and pttrchased by the said intestate, who up to his death always claimed him as bis property. They further proved that two of the plaintiffs-had died since the institution of the suit, and as to them that it had not been, revived, and that Emory W. Hughes, Richard P. Hughes, James N. Hughes and Elisha T. Hughes, children of Christiana Hughes, deceased, were also heirs at law of Polly Woods, and were in life. To rebut this, the plaintiffs introduced a deed executed by the said Emory W., Richard P., James N., and Elisha T. Hughes, after the purchase by the defendants’ intestate, and whilst he had possession of and claimed the slave as his own property, by which they conveyed to William J. Hughes all their right and title to said slave. There was evideuce in the case from which the jury might infer that the plaintiffs and the grantors in the last named deed knew, at t ie time of its execution, that the intestate of the defendants had the possession of the slave, and claimed him as his own property. There was much other testimony introduced on the trial, none of which, however, is material to the questions decided by this court. The charge of-the Circuit Court upon ' the above evidence,which was excepted toby the plaintiffs, and is now assigned as error, will be found in the opinion.
    Robinson, for the plaintiffs in error:
    1. No sale or other disposition made hy the tenant for life can defeat the remainder. — Fearne on Remainders, 415, (marg.) Lyde et als. v. Taylor et als. 17 Ala. 270. On many deeds similar to this our own court has put a construction, which shows that this remainder to the heirs of Polly Woods is good, and not. contingent. — Catterlin v. Hardy, 10 Ala. 514; Inge v. Murphy, 10 ib. S85; Adams v. Broughton, 13 ib. 731; Price et al. v. Talley’s Adm’r, 10 ib. 94G —see also, Bank’s Adm’r v. Marsbérry, 3 Littell, 279. Defendant proved that certain persons by the name of Hughes were heirs of Polly Woods: That these persons, in Oct. 183S, sold their interest in the property sued for to one of the plaintiffs, and that this sale took place before the death of Drury Woods; and at the time of this sale Talley was in possession uncieran alleged purchase and claimed title in himself. Upon this proof the court charged that the possession of Talley was adverse, and being adverse, that the plaintiff acquired no right under said sale, and that the plaintiffs could not recover. This charge was clearly erroneous : For, if it be true that Woods held but a life estate, and that the remainder to the plaintiffs could not be destroyed by any act of the tenant for life, it thence follows that Talley bought Woods* life estate, and no greater interest, and that he held that interest in precisely the satne character that Woods held it. By his purchase from Woods he sustained the same relation to those in remainder that Woods did. Woods being tenant for life, was a trustee for those in remainder: And being trustee, his purchaser could acquire no greater powers than he had. — Fearné on Remainders, 414; Lyde et als. v. Taylor et als. 17 Ala. 270. No adverse possession could commence in any one till after the death of Woods and wife, because the possession of Woods-was in perfect harmony with the rights of the remainder-men. King v. Mims, 7 Dana, 267.
    2. Again, the charge is erroneous in this — it assumes that because Talley’s possession was adverse at the time of this purchase, that none of the plaintiffs could recover. If this conclusion be true, then property never could be recovered against an adverse possession, no matter how perfect the right to it.
    
      3. But again, if it be assumed that Hughes, the plaintiff, acquired ho right to this property by his purchase, because Talley’s possession was adverse, and as the legal title was still in his vendors, that they should have been made parties, still the charge is equally erroneous. This is an action of detinue, and therefore in form ex delicto. — 1 Chitty’s Plead. 121-2-3, and citations. In all actions ex delicto, where there is a nonjoinder of parties plaintiffs, the defendant cannot take advantage of this non-joinder so as to defeat the action iuidor the general issue, but must do it by plea in abatement. — 1 Chitty’s Plead. 64-66, and the cases cited by him. — James v. Stewart & .Rainey, 9 Ala. 855. In this last case, which was an action ex delicio, this court affirm the doctrine, that if the party suing have the legal right of action, the non-joinder of others who also have legal rights of action can only be taken advantage of by plea In abatement. The following cases hold that when one joint-owner sues alone, the non-joinder of others who have an equal right in the property cannot be taken advantage of under the general issue, but it must be by plea in abatement, or by motion to apportion the recovery. — Hart v. Fitzgerald, 2 Mass. II. 519; Thompson v. Hoskins, 11 Mass. 419, and cases cited by the court; Wheelright v. Depeystor, 1 Johns. R. 471; Brotberton v. Hodges, 6 Johns. R. 1Q.S; Bradish v. Scherick,8 Johns. R. 117; Hall v. Adams, 1 Aikin, 166; Bell v. Lyman, 1 Monroe, 40; Rich v. Pemissield, 1 Wend. 380; Clancy v. Dickey, 2 Hawks’s R. 497; White v. Webb, 15 Conn. 302; Wilson v. Gamble, 9 N. Hamp. 74; Gilbert v. Dickinson, 7 Wend. 449; Low v. Mumford, 14 Johns. R. 426. All which show, even admitting that Talley’s possession was adverse, and the sale to Hughes therefore void, that he and the other plaintiffs were still entitled to recover; and defendants having failed to plead in abatement, these facts could not be made available to them under the general issue, and the same rule will hold in regard to the other alleged parties in interest, not made parties to the suit. As to the deaths of the plaintiffs after suit, the plea in abatement was proper. — 1 Chitty’s Plead. 447.
    BrickeIíL, for the defendants:
    1. It has been decided by this court, that if a remainder Í3 created in a slave, and the tenant for life sells to a stranger, it is a discontinuance of the estate in remainder, and turns it into a chose in action. — Broome v. King, 10 Ala. 819.
    2. A chose in action cannot be assigned so as to vest in the -assignee a right to sue in his own name at law. — Goodwyn v. Loyd, S Port. 237.
    3.- The charge of the court is in substance this, that if Talley had possession of the slave sued for, claiming him absolutely under color of title, and the transferors- knew this at the time of the transfer.to William J. Hughes, then the defendants must recover. This court has decided, that to constitute an adverse possession which will avoid a sale, the following facts must concur: an actual possession; that possession connected with a lona fide claim of title; title asserted as hostile or adverse to the title of the true owner. — Nelms y. Hintou, 13 Ala. 222. The charge of the court requires the jury to determine whether these facts exist.
    4. Admitting that Talley’s title was subordinate to that of .the plaintiffs’, when acquired, his possession would become adverse, if he disclaimed holding subject to the plaintiffs’ title, and retained possession, asserting title in himself, and the plaintiffs had notice thereof, or it was so notorious as to afford reasonable presumption of .notice. — Harrison v. Pool, 16 Ala. 167.
    5. But if the court below erred in its charge, this court will not reverse, as the record shows the plaintiffs are not entitled to recover. The plaintiffs have not the entire interest in the slave sued for, and this is a fatal objection. — Bell v. Hogan, 1 Stew. 536; Miller v. Eastman, 11 Ala. 609; Broome v. King, 10ib.819.
   CHILTON, J.

It is well settled in this State, that to entitle the plaintiffs to recover in the action of detinue, they musí have the entire interest in the thing sued for; they must have .the absolute property with the right to the immediate possession, or a special property, as in the CEise of a bailee.” — Miller v. Eastman, 11 Ala. 609-614; Hogan v. Bell, 1 Stew. 536. To say nothing as to the failure of the plaintiffs to revive the suit in the Circuit Court in the names of the personal representatives of such of the plaintiffs as had died'since it was commenced, it appears that Emory W., Richard P., James M. and Elisha T. Hughes, children of Christiana Hughes and heirs of Polly Woods, and who w.ere such when the .suit was cm* menced, were not made-parties thereto. This fact, which is shown by the record, defeats -the plaintiffs’ right to- recover,under the-decisions-above refered to, unless the conveyance-by the said children of Christiana to William J. H-ughes, one- of' the plaintiffs, dated Oct. 4, 1838, passed their interest to him: The proof shows that at the- time- this sale was- made Jacob Talley, the defendants’-intestate, was in the actual possession of the slave, claiming the same as- his-mwn, having purchased at constable’s-sale on the 4th March 1828-, under the belief that the person selling-the slave to-hint-had a-good right to sell and dispose of him. T,lie-court charged-'the jury that if they believed that the said-Jacob Talley had-purchased'the slave sued: for, believing that the person selling ha-d a-good right to sell; and' that he held the said slave under said purchase as his own property, against the claim of all persons, and that this'was known to-said persons, (the Hughes,) at the time they executed the said-conveyance-or transfer- to W. J. H-ughes, tha-t then the plaintiffs-ivere not entitled to recover. The effect of the charge is-, that-' if Jacob Talley purchased in good.-faiih and held the'slave, and-claimed title- to. him adver-se- to every one- else, and this was: known to the persons transfering to W, J. Hughes at the time of their transfer, it amounts to a sale of a chose in action, and-that such transfer does not vest any title- which will support this action. Irrespective of the question, so ably argued by the counsel for the plaintiffs in- error,- that the deed to Polly and Drury Woods conveys such an interest to- the- rem-ai-nder-men, us cannot be defeated by the-sale made of the-slave as the property of Drury Woods, we think th.e charge is strictly in accordance with the law; for if we-concede the position.contended for, that the remainder-men could sue- and- recover from the purchaser, it does not follow that they can transfér this.right of-action to another, so as to enable him to-maintain the suit in his own name. Granting, for the sake of th.e argument, what the counsel for the plaintiffs contends for, that this is not a contingent remainder, but that it is such an interest as is not subject-to be-defeated by any disposition of the party entitled, for life, even then it must be held subject to be turned into amhose in.action. The case of Broome et al. v. King, adm’r, 10 Ala. 819-823, is-an authority directly in point. In that case, it w.as held that a. sale nrade bjt-the husband of the tenant for life, and, before-the termination of the life estate, changed the remainder, which was vested, into a chose in action, disabling, the husband of one of the parties entitled in remainder, and who- united with him all the parties except his wife, from recovering against the alienee of the tenant for life. That such adverse possession will avoid the sale made to Wm. J. Hughes a’nd thereby render the present plaintiffs incapable of recovering — see Goodwyn v. Lloyd, 8 Port. 237; Brown v. Lipscomb, 9 ib. 472; Nelms v. Hinton, 13 Ala. 222; Harrison v. Pool, 16 ib. 167; Herbert v. Hanrick, 16 ib. 581. The question Is not whether Talley took a good title to the property by his parchase under the constable’s sale; but did he, at the time of the transfer to’ Wm. J. Hughes, hold the property as his own under a bona fide claim of title, and had the persons- making, the transfer knowledge of this fact at the time of such transfer? These inquiries were fairly and properly presented by the charge- of the court to1 the jury; and being the only matters assigned as error upon the record, we do not deem it necessary to go- beyond them,- to decide upon the character of the title conveyed by the deed of Price to his daughter and son-in-law, Polly and Dru'ry Woods.

Judgment affirmed.

Parsons, J., not silting.  