
    Michael v. Doe on the Demise of Nutting.
    
      Wednesday, November 28
    A conveyance made by a person out of possession of land, held adversely by a third person, is void for champerty.
    ERROR to the Fayette Circuit Court.
   Smith, J. —

Ejectment, for lot No. 75 in the town of Connersville. The lessor of the plaintiff below recovered and had judgment. The question before us is whether such judgment was warranted by the evidence.

One Harlan conveyed the premises to. John Davis, under whom both parties claimed.

The title of the lessor of the plaintiff below was derived as follows:

On the 4th of August, 1820, John Davis conveyed to Jonathan Davis. On the 30th of March, 1840, Jonathan Davis quit-claimed to James D. Eads and Abram Jjyons. These last named persons quit-claimed to Joseph D. Eads, by deeds, that of James D. Eads being dated May 16th, 1840, and that of Lyons, December 10th, 1840. On the 2d of July, 1846, Joseph D. Eads gave a quit-claim deed for the premises to Nutting\

An action of ejectment was commenced in September, 1840, by Doe on the Demise of James D. Eads, Abram Jjyons, and Jonathan Davis. The declaration was served on one John Cope, the tenant in possession, and in April, 1841, judgment was rendered, by default, against the casual ejector.

Joseph D. Eads had possession of the premises in 1843, and rented them to one Davis, who continued, in possession until the spring of 1846. When Davis was moving out, the agent of Eads was about to rent the premises to another person, but, when Davis got out, Reed’s heirs took possession and locked the doors, so that the tenant of Eads could not get in.

On the part of Michael, the defendant below, the following facts were proved:

On the 18th of October, 1820, Yandes and Yousb recoverecl a judgment against John Davis for 115 dollars and costs. A fi-fa. was issued on the 6th of May, 1822, which was returned on the 1st of June, 1822, with an indorsement, stating that the sheriff had made 12 dollars and 6 cents by the sale of the premises in controversy. The sheriff made a deed for said property, pursuant to said sale, to Andrew W. Reed, which deed was dated July 19th, 1822, and was acknowledged and recorded on the 28th of June, 1830. Andrew W. Reed conveyed to one McClary, he to one Morrison, and the latter, on the 17th of November, 1830, to Archibald Reed.

The premises were in the possession of an agent of the heirs of Archibald Reed in 1837, which agent rented them to different persons up to the 2d of February, 1841. On the 5th of June, 1846, the same agent had possession again, and on that day rented them to Michael, who was still in possession under the heirs of Archibald Reed, as their tenant.

After the death of Archibald Reed, and some fifteen years before the trial in the Circuit Court, his heirs built a house on the premises for the use of his widow, in which house the latter lived until her death, after which the house remained in possession of said heirs until they were turned out of possession on the 26th of May, 1841, by a writ of habere facias possessionem.

The plaintiff in error contends that Nutting had no light to recover, because the deeds under which he claims, namely, that from Jonathan Davis to Fads and Lyons, and those from the last named persons to Joseph D. Eads, all of which were made in the year 1840, as well as that of Joseph D. Eads, to the plaintiff below, dated in July, 1846, were all made while the premises were in the adverse possession of Reed's heirs, and, consequently, were void. To this it is answered, that at the time of the date of the deed last mentioned, Reed's heirs were in possession as mere trespassers, having got possession forcibly when the tenant of Eads was about moving away. But this answer is not sufficient. It does not dispose of the objection to the prior deeds, carrying the title down from Jonathan Davis to Nutting’s grantor, which are necessary links in his chain of title.

The proof is clear, that at the time of the execution of all these conveyances, and for several years before, the lot in controversy was in the possession of Reed’s heirs, under an uninterrupted chain of paper title, adverse to that under which Nutting claims. Such being the fact, on principles already settled by this Court, these deeds must be held void. Martin v. Pace, 6 Blackf. 99.—Galbreath v. Doe, 8 id. 366. The deed from Jonathan Davis to Eads and Lyons, which is the starting point of Nutting’s chain, being thus void, it is immaterial, for the purposes of this suit, whether the legal title remains outstanding in Jonathan Davis, or whether it was divested by the sale under the judgment and execution against John Davis. There can be no doubt that there was sufficient color' of title transmitted down by these proceedings and the subsequent deeds founded upon them, upon which to sustain a claim of adverse possession.

If the sale under the judgment against John Davis, did vest a valid title in the grantors of Archibald Reed, it is still in the heirs of the latter, and if it did not, then, so far as appears by the evidence adduced in this suit, the title of Jonathan Davis, which was not divested by his void deed to Eads and Lyons, still remains in him; and in either case, as a plaintiff in ejectment must rely upon the strength of his own title, we must come to the conclusion that the evidence does not sustain the judgment rendered in this case.

We cannot perceive in what manner the ejectment suit, commenced in 1841, on the joint demise of James D. Eads, Abram Lyons, and Jonathan Davis, can have any effect to avert this conclusion. Certainly, the plaintiff in error in this suit, is not estopped by any of the proceedings in that case from denying the sufficiency of the deeds of. Eads' and Lyons, now exhibited, to convey a valid title to Nutting.

J. S. Newman, for the plaintiff.

J. Hyman, for the defendant.

Per Curiam.

The judgment is reversed with costs. Cause remanded, &c.  