This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
Foster v. Walton, 5 Watts (Pa.) 378; Laird v. Scott, 5 Heisk. (Tenn.) 314.
37. 1 Stimson's Am. St. Law, Sec. 4592.
38. McNeely v. Rucker, 6 Blackf. (Ind.) 391; City of Baltimore v. Williams, 6 Md. 235 Lancaster v. Dolan, 1 Rawle (Pa.) 231, 18 Am. Dec. 625; Laird v. Scott, 5 Heisk. (Tenn.) 214; Harton v. Lyons, 97 Tenn. 180, 36 S. W. 851. Contra, Fleming v. Townsend, 6 Ga. 103, 50 Am. Dec. 318; Gardner v. Cole, 21 Iowa, 205; Enders v. Williams, 1 Mete. (Ky.) 346. And see Sterry v. Arden, 1 Johns. Ch. (N. Y.) 261; Mellick v. Mellick, 47 N. J. Eq. 86, 19 Atl. 870.
Even though the prior conveyance be invalid so far as concerns the grantee therein, it cannot be set aside as against a purchaser from him for value without notice of the fraud, nor, when the fraud is based, as formerly in England, on the voluntary character of the conveyance, although he knows of its voluntary character.41
The Statute of 27 Eliz. c. 4, also contained a provision that a conveyance containing a power of revocation in the grantor should be invalid as against a subsequent conveyance by the same grantor to a purchaser for a valuable or good consideration. This provision, or its substantial equivalent, has been adopted in many states;42 but occasion for the application of such statutes has, in England, but seldom arisen, and, in this country, practically never.
589. Conveyances in violation of the bankrupt act. The national bankruptcy act43 provides that a person shall be deemed to have given a preference if, being insolvent, he has, within four months of the filing of the petition in bankruptcy or after the filing of the petition and before the adjudication, procured or suffered a judgment to be entered against himself in favor of any person, or made a transfer of any of his property, and the effect of the enforcement of such judgment or transfer will be to enable any one of his creditors to obtain a greater percentage of his debt than any other of such creditors of the same class, such period of four months not to expire until four months after the date of the recording or registering of the transfer, if such recording or registering is required by law; and it furthermore provides that in such case, if the person receiving the judgment or transfer, or to be benefitted by it, or his agent, shall have reasonable cause to believe that the enforcement of such judgment or transfer will effect a preference, it shall be voidable by the trustee and he may recover the property or its value from such person. The statute also gives the trustee the right to take proceedings to set aside any transfer in fraud of creditors, made within four months prior to the filing of the petition, and vests in him the title to property so transferred.44 Under the act, moreover, any general assignment for the benefit of creditors, although free from fraudulent intent, and containing no preferences, is an act authorizing an adjudication of bankruptcy, whereupon the assignment becomes void.45
39. Beal v. Warren, 2 Gray (Mass.) 447; Cathcart v. Robinson, 5 Pet. (U. S.) 264, 8 L. Ed. 120; Jackson v. Town, 4 Cow. (N. Y.) 603; City of Baltimore v. Williams, 6 Md. 235; Shaw v. Tracy, 83 Mo. 224; 4 Kent's Comm. 463, note.
40. City of Baltimore v. Williams, 6 Md. 235; Gardner v. Cole, 21 Iowa, 212; Gilliland v. Fenn. 90 Ala. 230, 9 L. R. A. 413. 8 So. 15; Cathcart v. Robinson, 5 Pet. (U. S.) 264, 8 L. Ed. 120; 1 Story, Eq Jur. Sec. 427; 2 Pomeroy, Eq. Jur. Sec. 974.
41. Prodgers v. Langham, 1 Sid. 133; Doe d. Newman v. Rusham, 17 Q. B. 723; Gilliland v. Fenn, 90 Ala. 230, 9 L. R. A. 413, 8 So. 15; Fletcher v. Peck, 6 Cranch (U. S.) 87, 3 L. Ed. 162; Reynolds v. Vilas, 8 Wis. 471, 76 Am. Dec. 238.
41'. 1 Stimson's Am. St. Law. Sec. 4593.
590. Transfers by disseisees. By St. 32 Hen. VIII. c. 9,46 it was declared to be unlawful to buy or sell any pretended right or title to any lands or hereditaments unless the vendors or their ancestors, or the persons through whom the claim is derived, have been in possession of the property, or of the reversion or re43. Act July 1, 1898, Sec. 60, as amended June 25, 1910.
44. Bankruptcy Act. Sec.Sec. 67, 70;
45. Bankruptcy Act, Sec. 3; Collier, Bankr. (10th Ed.) 97 et seq.
46. The "Pretended Title Act" (A. D. 1540).
In a few states in this country the English statute, or the principle involved therein, was adopted as a part of the common law.48 In other states there are specific statutory provisions invalidating transfers of land in the adverse possession of another person.49 In a majority of the states, however, at the present time, no restriction upon the right of transfer arising from the fact that the land is in the adverse possession of a third person is recognized,50 and that such is the law is quite frequently declared by statute.51
47. See Rawle, Covenants for Title, Sec. 47. Article in 2 Law Quart. Rev. 481, by Prof. Mait-land.
48. Bernstein v. Humes, 60 Ala. 582, 31 Am. Rep. 52; Patterson v. Nixon, 79 Ind. 251; Tabb v. Baird, 3 Call. (Va.) 481; Barry v. Adams, 3 Allen (Mass.) 493; 4 Kent's Comm. 448.
In England, the statute was regarded as invalidating a sale by one who had not been in possession for a year. Doe d. Williams v. Evans, 1 C. B. 717. But 8 & 9 Vict. C. 106, making rights of entry alienable, changed the law in this respect. Kennedy v. Lyell, 15 Q. B. Div. 491; Jenkins v. Jones, 9 Q. B. Div. 128.
49. Stimson's Am. St. Law Sec. 1401.
50. Roberts v. Cooper, 20 How. (U. S.) 467, 15 L. Ed. 969; Lytle v. State, 17 Ark. 608; Mathewson v. Fitch, 22 Cal. 86; Bayard v. McLane, 3 Har. (Del.) 139; Matthews v. Hevner, 2 App. D. C. 349; Doe d. Cain v. Roe, 23 Ga. 82; Bon v. Graves, 216 Mass. 440, 103 N. E. 1023; Farrar v. Fessen-den, 39 N. H. 268; Hall v. Ashby, 9 Ohio, 96; Stoever v. Whitman's Lessee 6 Binn. (Pa.) 416; Hall v. Ashby, 9 Ohio, 96.
51. 1 Stimson's Am. St. Law, Sec. 1401. See Shortall v. Hinckley, 31 111. 219; Trustees of Putnam
3 R. i .
The adverse possession in a third person which invalidates the conveyance need not, as a rule, be under color of title,52 though in two states the statute is otherwise construed.53
The statute has been held not to apply to a transfer made in the performance of an executory contract valid when made,54 to a transfer made to correct a mistake,55 to a judicial sale,56 to a transfer by the state,57 nor to a conveyance operating by way of release to the person in possession.58
A conveyance of land in the adverse possession of another, in violation of the statute, though it does not convey the legal title, so as to enable the grantee to maintain an action against the person in possession, is almost invariably regarded as effective for the purpose of transferring the title as between the parties, and an against everybody except the person in possession and those claiming under him.59 Consequently, while the grantor can alone sue in ejectment or otherwise for the recovery of the land, a recovery by him inures to the benefit of the grantee,60 and the grantee may himself, if he so desires, bring ejectment in the name of his gran-tor.61 In accordance with the theory that the conveyance is a nullity as regards the person in possession, it has been held that, in spite of the conveyance, a release by the grantor to such person is effective as against the grantee.62
Free School v. Fisher, 34 Me. 172; Crane v. Reeder, 21 Mich. 24, 4 Am. Rep. 430; Cassedy v. Jackson, 45 Miss. 397; Carring-ton v. Goddin, 13 Grat. iVa.) 587; Stewart v. McSweeney, 14 Wis. 468; Sims v. De Graffen-reid, 4 McCord (S. C.) 253; See Schaferman v. O'Brien, 28 Md. 565.
The history and present status of the doctrine are the subject of a valuable article by Professor George P. Costigan, in 19 Harv. Law Rev. 267.
52. Sharp v. Robertson's Ex'rs. 76 Ala. 343; Dubois v. Marshall, 3 Dana (Ky.) 336; Barry v. Adams, 3 Allen (Mass.) 493; German Mut. Ins. Co. of Indianapolis v. Grim, 32 Ind. 249, 2 Am. Rep. 341.
53. See Crary v. Goodman, 22 N. Y. 170; Higinbotham v. Stoddard, 72 N. Y. 94; Stoddard v. Whiting, 46 N. Y. 627; Kreuger v. Schultz, 6 N. D. 310, 70 N. W. 269.
54. Greer v. Wintersmith, 85
Ky. 516, 7 Am. St. Rep. 613, 4 S. W. 232; Simon v. Gouge, 12 B. Mon. (Ky.) 156; Gunn v. Scovil, 4 Day (Conn.) 234; Hale v. Darter, 10 Humph. (Tenn.) 92.
55. Hopkins v. Paxton, 4 Dana (Ky.) 36; Ross v. Blair, Meigs (Tenn.) 525; Augusta Mfg. Co. v. Vertrees, 4 Lea (Tenn.) 75.
56. Humes v. Bernstein, 72 Ala. 546; Little v. Bishop, 9 B. Mon. (Ky.) 240; Preston v. Breckinridge, 86 Ky. 619, 6 S. W. 641; Hoyt v. Thompson, 5 N. Y. 320; Coleman v. Manhattan Beach Improvement Co., 94 N. Y. 229; Doe d. Williams v. Bennett, 26 N. C. 122.
57. Ward v. Bartholomew, 6 Pick. (Mass.) 409; Jackson v. Gumaer, 2 Cow. (N. Y.) 552; Cassedy v. Jackson, 45 Miss. 407; Hill v. Dyer, 3 Me. 441.
58. Cameron v. Irwin, 5 Hill (N. Y.) 272; Adams v. Buford, 6 Dana (Ky.) 413; Sessions v. Reynolds, 7 Smedes & M. (Miss.) 130; Williams v. Council, 49 N. Car. 206.