
    Pearson v. King.
    
      Action of Ejectment.
    
    1. Conveyance of land adversely held. — A conveyance of lands, which are at the time in thei)ossession of a third person, holding adversely to the grantor, is void as against the adverse possessor and the persons in pnvity with him, and will not support ejectment by the grantee against such adverse holder. But as to all others, atid as between the parties themselves, it is valid and operative.
    2. Right of grantee to use grantor’s name in an action of ejectment. — A conveyance of land adversely held authorizes the grantee therein to use the grantor’s name in a suit for the recovery of the property ; and the grantor can not prevent such use of his name by the grantee.
    3. Same. — The grantor in a conveyance of land held adversely can not, by a subsequent release or conveyance to the adverse holder, or by an order to dismiss, defeat an action of ejectment brought in his name for the recovery of the land from the adverse holder, for the benefit of the first grantee.
    Appeal from tbe City Court of Birmingham.
    Heard before the Hon. W. W. Wilkerson.
    This was a common law action of ejectment, and was commenced on July 26, 1888. In the declaration as amended, there were three demises. One in the name of David Pear.son, another in the name of S. P. Waits, and the third in the name of John D. Strange and J. H. White. After the commencement of the suit, David Pearson, in whom one of the demises was laid, having died, upon motion of the plaintiff, it was revived, as to that demise, in the name of his heirs-at-law, and of the administrator of his estate. The appellee, P. G. King, as landlord of R. M. Ray, was admitted to defend, and pleaded, first, the general issue, and second, by special plea, that since the commencement of the suit all of the lieirs-at-law of David Pearson, deceased, had conveyed to the said defendant, all their right, title and interest in the land in controversy. The plaintiffs’ demurrer to this plea being overruled, they filed a replication to plea number two, the substance of which is stated in the opinion. The defendant demurred to this replication to plea number two, on the ground, that there was nothing contained in the said replication which precludes or debars him from the defense set up in said plea; and that it appears from said replication that the conveyance by Pearson to White and Strange was executed to them while King, the defendant, was in the adverse possession of the premises, claiming title thereto. This demurrer was sustained by the court, and its rulings thereon constitute the ground of one of the assignments of error.
    As the opinion of the court only considers the assignments of error addressed to the rulings of the court upon the pleadings, it is not deemed necessary to set out any other facts in detail.
    
      "Webb & Tillman, for appellant.
    The deed of David Pearson’s heirs to King did not defeat the right of Strange and White to recover the land in the name of their grantor, David Pearson, if it was held adversely at the time of Pearson’s deed to them. — Davis v. Curry, 85 Ala. 134; Bernstein v. Humes, 60 Ala. 582; Steeple v. Douming, 60 Ind. 487; Farnum v. Peterson, 11 Mass. 151; White v. Patton, 24 Pick. 324; McMahan v. Boioe, 114 Mass. 145; Sedgwick & Wait on Trial of Title to Land, § 190.
    Brooks & Brooks, contra,
    
    cited Alexander v. Collins, 7 Ala. 480; Scranton v. Ballard, 64 Ala. 402; Davis v. Gurry, 85 Ala. 133; 3 Brick. Dig., p. 18, § 51.
   WALKED, J.

This is a common-law action of ejectment. David Pearson, in whom one of the demises was laid, having died pending the suit, it was revived as to that demise in the names of his heirs-at-law, and of the administrator of his estate. The defendant interposed a special plea, to the effect that since the commencement of the suit, the heirs of David Pearson had executed a conveyance of the land sued for to the defendant. A demurrer to this plea having been overruled, the plaintiffs interposed a replication thereto, to the effect that before the beginning of the suit, David Pear- ■ son was seized of the legal title to the land sued for, and executed a conveyance thereof to Strange and White, when he knew that the land was in the adverse possession of the defendant’s tenant; that this action was begun and is prosecuted for the use and benefit of said Strange and White ; that the deed to them was duly recorded before the execution of the conveyance by Pearson’s heirs to the defendant, and that the defendant had notice of David Pearson’s deed to Strange and White when he obtained the deed from David Pearson’s heirs to himself pending this suit. The defendant’s demurrer to this replication was sustained.

It is well settled that a sale and conveyance of lands, which are at the time in the possession of a third person holding adversely to the grantor, is void as against the adverse possessor, and will not support; ejectment by the grantee against him. — 3 Brick. Dig. p. 18, § 51. The grantor in such conveyance may still maintain ejectment against the adverse holder, and the latter can not plead the conveyance in bar of the suit. The conveyance is void as to him, and he can not set it up as a defense.—Davis v. Curry, 85 Ala. 133. The conveyance is void only as against the adverse possessor and persons in privity with him. As to all others, and as between the parties, it is valid and operative. — Yarborough v. Avant, 66 Ala. 526; Harvey v. Doe, ex. dem. Carlisle, 23 Ala. 637; Abernathy v. Boazman, 24 Ala. 189. The execution of the deed imports that the grantor intends to vest the title in his grantee, and to confer upon him the beneficial enjoyment of the property, so far as that result may be accomplished legally. Because of the rule of law which invalidates the deed as against the adverse holder, it can not operate to authorize the grantee to sue in his own name for the recovery of the land from such adverse holder. But this rule of law does not stand in the way of the grantor authorizing the use of his name in a suit for the recovery of the property. Courts of law long ago recognized the right of a transferee of a chose in action, which was not assignable under the common law, to use the name of the transferror in a suit thereon. Though such assignment was void as to the debtor, yet it bound the creditor to permit the use of his name by his transferee for the enforcement of the demand. On like considerations it has been held, that a conveyance of land adversely held, authorizes the grantee therein to use the grantor’s name in a suit for the recovery of the property. The question was presented in the case of Steeple v. Downing, 60 Ind. 478-487. It was there said: “We are satisfied, both upon reason and authority, that where one conveys land to another, which at the time is in the adverse possession of a third person, whereby the title can not pass as against the party thus in possession, the grantor impliedly authorizes the grantee to use his, the grantor’s, name, in an action to recover the land from the party thus in the possession thereof.” The result of the decisions has been stated to be, that the deed is construed to be a power of attorney authorizing the grantee to use the grantor’s name, as plaintiff in ejectment, to recover the lands, even against the will of the latter.— Sedgwick and Wait on Trial of Title to Land, (2d Ed.) § 190. The recovery enures to the benefit of the grantee, though the action is prosecuted in the name of the grantor. Brunson v. Morgan, 86 Ala. 318.

It is a general rule, that there can be no recovery in favor of the plaintiff on the record, after he has released or transferred his claim to the defendant. This court has recognized an exception to this rule, in suits prosecuted in the name of an assignor for the benefit of an assignee of a chose in action. Before the statute required a certain class of such suits to be prosecuted in the name of the party really interested, courts of law, even in suits in the name'of the assignor, took notice of the rights of the assignee, and would not permit them to be prejudiced by the acts, declarations, or admissions of the assignor, done or made after the assignment.—1 Brick Dig., 127, §§ 56-58. The assignment was given such effect, as between the parties, that thereafter the assignor could not defeat the action prosecuted in his name for the benefit of the assignee. The position of a grantee in a conveyance of land held adversely is similar to that occupied, at the common law, by an assignee of a chose in action. In each case, the transfer is binding between the parties, and is void only as to third persons who, according to the theory of the law, might be prejudiced by having claims against them put in the hands of others than the original holders. In each case, if the suit is against such third person, it may be proseecuted in the name of the transferror, for the benefit of the transferee. The reasons against permitting the transferror to defeat such suit by anything said or done by him, after the transfer, are equally applicable in each of the two cases. These reasons have led several courts, in which the question has been presented, to the conclusion that a grantor in a conveyance of land held adversely can not, by a subsequent release or conveyance to the adverse holder, or by an order to dismiss, defeat an action brought in his name for a recovery of the land from the adverse holder for the benefit of the first grantee. Steeple v. Downing, 60 Ind. 478; White v. Patten, 24 Pick. 324; Farmun v. Peterson, 111 Mass. 148; McMahan v. Bowe, 114 Mass. 140. This conclusion is supported by a "consideration which is well illustrated in the present case. David Pearson’s heirs, who executed the deed relied on by the defendant, had only such right to the land as descended to them from their ancestor. Wo far as the defendant claims under their deed, he stands in their shoes. He has no greater rights by virtue of that deed than his grantors had at the time it was executed. Their ancestor’s prior conveyance was binding on them, in favor of his grantees. That conveyance conferred upon the grantees therein the right to use the name of the grantor, or of his heirs, in an action of ejectment against the adverse holder. Neither the grantor nor his heirs could refuse the use of their names for such a purpose. They could not confer upon another a right which they did not themselves have. The defendant’s adverse possession entitles him to treat the deed to Strange and White as a nullity. But when he abandons this position, and sets up a claim under the grantor in that deed, to that extent he puts himself in privity with tliht grantor, and derives from him only such rights as the latter had. So far as the defendant claims under the deed to him from David Pearson’s heirs, he relies on their rights as against Strange and White ; and that deed can not have effect to defeat this suit, as the grantors therein had no right to prevent the prosecution of the suit in their names, for the benefit of their ancestor’s grantees. It results from this conclusion, which, we are satisfied, is correct, that the demurrer to the replication to the defendant’s special plea number 2 should have been overruled.

The authorities cited for the appellee are not against this ruling. They only assert the general rule, that in actions of ejectment, as in other forms of action, a release or transfer of his claim by the plaintiff, pending the suit, will defeat his right to recover.—Doe, ex dem. Alexander v. Collins, 7 Ala. 480; Scranton v. Ballard, 64 Ala. 402; Jackson v. Demont, 9 Johns. 55. Neither of the cases cited is an authority against the proposition, that a grantor in a conveyance of land held adversely can not prevent the use of his name by the grantee, in an action for the recovery of the land for the benefit of the latter. In actions of ejectment, as in other actions, which may be prosecuted in the name of one person for the benefit of another, when the facts are brought to the attention of the court, it will not shut its eyes to the rights of the person beneficially'interested in the prosecution of the suit, but will protect them against the unauthorized conduct of the nominal plaintiff.—Roden v. Murphy, 10 Ala. 804.

For the error in sustaining the demurrer to the replication, the judgment must be reversed.

Reversed and remanded.  