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[Jenkins et al. v. Bramlett, Exec. etc.]

society." And this same doctrine as to measure of damages in case of death, was laid down by this court in the case of L. & N. R. R. Co. v. Trammell, 93 Ala. 350. The several sections of this statute, when taken together, make it quite clear that a different rule as to the measure of damages was intended where death ensued from that where death does not result from the injury.

The judgment of the circuit court is reversed and the cause is remanded.

Reversed and remanded.

Jenkins et al. v. Bramlett, Exec. etc. Statutory Action of Ejectment..

1. Ejectment; revivor; when not shown to be in the name of the personal representative of deceased.-Where in an action of ejectment upon the death of the plaintiff being suggested, the action is revived "in the name of B. executor of the estate" of the original plaintiff, deceased, “as party plaintiff," such revivor is not made in the name of the personal representative of the deceased, but in the name of B. as an individual-the words in said order of revivor "executor of the estate," etc., being merely descriptio personae; and upon its being shown that under the will of the original plaintiff said B. had no interest either as heir or devisee in the land sued for, the defendants are entitled to judgment.

APPEAL from the City Court of Gadsden.
Tried before the Hon. JOHN H. DISQUE.

This was a statutory action of ejectment brought against the appellants, to recover certain lands specifically described in the complaint. The facts of the case necessary to an understanding of the only question reviewed on the present appeal are sufficiently stated in the opinion.

From a judgment in favor of the plaintiffs the defendants appeal, and assign as error the several rulings of the trial court to which exceptions were reserved.

[Jenkins et al. v. Bramlett, Exec. etc.]

BOYKIN & LEE and AIKEN & MARTIN, for appellants.

GEORGE D. MOTLEY, contra.

TYSON, J.-This action was commenced by Elias A. Bramlett, and upon his death was revived "in the name of L. W. Bramlett, executor of the estate of Elias A. Bramlett, deceased, as party plaintiff." After the revivor the cause was tried by the presiding judge without a jury resulting in a judgment in favor of the plaintiff.

The object sought to be attained by the revivor was to prevent an abatement of the suit; to substitute as party plaintiff the person succeeding to the rights of the original plaintiff to the possession of the lands in controversy, and to allow such substituted plaintiff to recover, if entitled to, as if the action had been originally begun by him. After an order of revivor the person named therein becomes in legal effect the party plaintiff in the action; and so far as his right to maintain it is involved, he occupies the same position as if he had originally commenced it, and this is true without an amendment of the complaint. His character as plaintiff, whether that of an individual or as executor or administrator, must be determined upon the same principles had he begun the action. The revivor confessedly could have been made in the name of the personal representative of the deceased or his devisees. Code, § 38; Pearson v. King. 99 Ala. 125; 18 Ency. Pl. & Pr., 1125, 1126. In this case it was not made in the name of the personal representative, but in the name of L. W. Bramlett as an individual. The words in the order of revivor "executor," etc., immediately after the name of Bramlett are mere descriptio personae and the action was by him in his individual capacity and not as executor.—Lucas v. Pittman, 94 Ala. 616. der the will of Elias A. Bramlett, the original plaintiff, he has no interest either as heir or devisee, in the lands sued for. He, therefore, should not have been allowed to recover them.

Un

[Tennessee Coal, Iron & Railroad Co. v. Gardner.]

It is unnecessary to consider the exceptions reserved by defendants to the ruling of the court upon the other matters.

The judgment will be reversed and one will be here rendered in favor of the defendants. Reversed and rendered.

Tennessee Coal, Iron & Railroad Co. v. Gardner.

Statutory Action of Ejectment.

1. Registration of deed; when not constructive notice to subsequent grantee.-The recording of a deed from any other person than the grantor from whom title is claimed will not operate to give constructive notice to a subsequent grantee. 2. Same; statute applicable to judicial sales.-The statute providing that conveyances of real property are void as to purchasers for a valuable consideration having no notice thereof, unless recorded within thirty days from their date, (Code, § 1005), affords the same protection to purchasers at judicial sales that it does to purchasers at private or individual sales.

APPEAL from the Circuit Court of Bibb.
Tried before the Hon. JOHN MOORE.

This was a statutory action of ejectment brought by the appellee, Grace Gardner, against the appellant, the Tennessee Coal, Iron & Railroad Company, to recover certain lands specifically described in the complaint. The facts of the case are sufficiently stated in the opinion.

Upon the introduction of all the evidence the court, at the request of the defendant, gave to the jury the general affirmative charge in its behalf, to the giving of which charge the plaintiff duly excepted.

There was a verdict in favor of the defendant and judgment rendered accordingly. Thereupon the plaintiff filed a motion for a new trial, and assigned as grounds of this motion that there was newly discov

[Tennessee Coal, Iron & Railroad Co. v. Gardner.]

ered evidence and that the court erred in giving the general affirmative charge requested by the defendant.

Upon the hearing of this motion the court granted the same and rendered a decree ordering a new trial. To this ruling the defendant duly excepted. The defendant appeals, and assigns as error the judgment of the court granting a new trial.

A. LATADY, for appellant, cited Winston v. Hodges, 102 Ala. 304; Avent v. Read, 2 Stew. 488; Mallory v. Stodder, 6 Ala. 801; Wood v. Lake, 62 Ala. 489; Watts v. Parsons, 73 Ala. 202; Chadwick v. Carson, 78 Ala. 116; Simon v. Davis, 36 Ala. 589; Fenno v. Sayre, 3 Ala. 458; Trust Co. v. Ledyard, 8 Ala. 866; Lehman v. Collins, 69 Ala. 128; Haralson v. George, 56 Ala. 295.

S. D. LOGAN, contra, cited Tutwiler v. Montgomery, 73 Ala. 269; Moore v. Clay, 7 Ala. 742; Baily v. Levy, 115 Ala. 565; Hutton v. Williams, 35 Ala. 503; Howison v. Oakley, 118 Ala. 237; Ezzell v. Brown, 121 Ala. 151; Goodbar v. Daniel, 88 Ala. 583; Thomas v. Glazier, 90 Ala. 538; Lindsay v. Cooper, 94 Ala. 170; Clemmons v. Cor, 114 Ala. 350.

DOWDELL, J.-The plaintiff and defendant each claimed title to the land in controversy from a common source, one Lee Allen, to whom the government issued a patent. The claim of title relied on by the plaintiff is as follows: Patent from the government to Lee Allen, dated December 1, 1860; deed from Lee Allen to James Hill executed March 6, 1861, recorded September 1, 1890; deed from James Hill to John W. White, dated October 15, 1870, proved September 8, 1884, recorded September 1, 1890; deed from John White to Jesse Miller, dated March 5, 1890, acknowledged March 5, 1890, filed for record April 3, 1890, and again acknowledged May 10, 1890, and filed for record May 23, 1899; deed from Jesse Miller to the plaintiff executed on the 26th day of July, 1895, and filed and recorded on the 11th day of November, 1895. The title relied upon by the defendant is as follows: Cahaba Coal Mining Co., the immediate grantor of the appellant corporation.

[Tennessee Coal, Iron & Railroad Co. v. Gardner.]

bought the lands at a sale made under a decree of the chancery court of Bibb county on the 7th day of April, 1890, which said sale was duly reported by the register to the court on the 8th day of April, 1890, and at the September term, 1890, of said court, was duly confirmed by said court and a deed ordered, which was duly executed to the Cahaba Coal Mining Co., the said decree and sale of said lands being had in proceedings in said chancery court for a sale and partition of said lands among the heirs-at-law of said Lee Allen, the entryman of said lands. A deed from the Cahaba Coal Mining Co. to the defendant, dated December 19, 1892, acknowledged January 25, 1893, was filed and recorded on January 31, 1893. At the time the Cahaba Coal Mining Co. purchased the lands at the sale by the register, the lands were unoccupied and were what are known as wild lands. They had not been occupied by any one since the residence thereon of the heirs of one Eddie Fuller about thirty years previous.

There is no question involved in the case of notice, actual or constructive, based upon occupancy. The sole question is as to who has the better title, and this we think is to be determined by our statute relating to the registration of conveyances. At the date of the purchase at the register's sale by the Cahaba Coal Mining Co., April 7, 1890, the deed from Lee Allen, the common source of title, to James Hill, and from James Hill to John W. White had not been recorded; consequently there was nothing of record which could operate as constructive notice to a subsequent purchaser from Allen. It is contended, however, that the deed from John White to Jesse Miller being of record operated as notice to a subsequent purchaser from Lee Allen. The record of a deed from any other person than the grantor from whom title is claimed will not operate to give constructive notice to a subsequent grantee. The following cases sustain this doctrine: Winston v. Hodges, 102 Ala. 340; Chadwick v. Carson, 78 Ala. 116; Watt v. Parsons, 73 Ala. 202; Lehman v. Collins, 69 Ala. 127; Wood v. Lake, 62 Ala. 489; Gimon v. Davis, 36 Ala. 589; Trust Co. v. Ledyard, 8 Ala. 866; Lamar v. Stodder, 6 Ala. 801; Fenno v. Sayre et al., 3 Ala. 458; Avent v. Reed, 2 Stew. 488; Code of 1896, § 1005.

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