In order to establish her right of recovery, the plaintiff introduced and read in evidence a transcript of the proceedings and decree in a suit in chancery, brought by her and Silas Brunson, against O. S. Lee and Matthew Brunson, the defendant in the present action. In the bill in equity, the complainants claimed title under a mortgage, executed in March, 1871, by M. Brunson, Sr., and M. & S. Brunson, of which firm defendant was a member. The mortgage was made to M. H. Amerine, as trustee, to secure a debt due by the firm to Carey & Hudson. The name of the firm was signed to the mortgage by S. Brunson. The property was sold under the mortgage, and purchased by the beneficiaries, who afterwards sold and conveyed it to Stoudenmire & Co., who sold and conveyed to Silas Brunson, who sold and conveyed it to Sallie Morgan, the plaintiff. The purpose of the bill was to divest the title to the property embraced in the mortgage, which included the land sued for in the present suit, out of Matthew Brunson and C. S. Lee. On July 12, 1887, the Chancery Court rendered a decree, divesting whatever title and interest was owned and held by the defendants, and vested the same in Sallie Morgan. It may be conceded that the decree has the effect and operation *320of a conveyance, and is evidence of title, upon which the plaintiff may maintain ejectment against the defendants in the chancery suit, or either of them.' — Moore v. Helms, 74 Ala. 368.
The present suit was commenced August 25, 1887. No controversy seems to have been raised as to the sufficiency of the decree to support the action. A special plea, filed by the defendant, sets up as a defense, that the plaintiff sold and conveyed, February 15, 1888, all her right, title and interest in the land, to Silas Brunson; and in support of the plea, he read in evidence a deed executed by her and her husband on that day. The plaintiff, in order to avoid the effect of the deed, then proved by the defendant, that he had been in the exclusive use and occupancy of the lands for many years, openly claiming and cultivating them continuously as his own, against the plaintiff and all others, and was, on the day the deed was executed to Silas Brunson, and still is, so claiming and cultivating them, and has in no way recognized the plaintiff’s right.
The general rule is, that in an action of ejectment, the plaintiff must have title, both at the time of the commencement of the action, and at the final trial. Though she may have had title, when the plaintiff commenced the action, she can not recover if her title has terminated during its pendency, either by voluntary conveyance, or by its own limitation, or otherwise. It is also well settled, that a sale and conveyance of land, which is in the adverse possession of a third person, holding under a claim of right, does not vest in the grantee a right to maintain an action in his own name for its recovery from such third person. Such conveyance, being valid as between the parties, the grantor may, after its execution, maintain an action of ejectment in his own name, the recovery enuring to the benefit of the grantee.— Davis v. Gurry, 85 Ala. 133; Scranton v. Ballard, 64 Ala. 402. It is, however, not enough to avoid a deed, that the land is in the possession of another, though exercising acts of ownership; it must be adverse. — Humes v. Bernstein, 72 Ala. 546; Williams v. Hatch, 38 Ala. 338. The possession of a mere trespasser will not operate to avoid the deed of the true owner. Nor does the rule apply to a sale made by a trustee, under a deed of trust, at a time when the grantor in the deed of trust is in possession of the premises. Neither does the possession of a vendee, under an executory contract of purchase, the purchase-money not having been paid, operate *321to avoid a conveyance made by Ms vendor. And where land has been sold under an execution, the possession of the debtor is not adverse to that of the purchaser at the execution sale; and a conveyance made by him, while the debtor is in possession, is valid. — Herbert v. Hanrick, 16 Ala. 581; Wiswall v. Boss, 4 Port. 321; Crook v. Travis, 20 N. Y. 400; Mitchell v. Lipe, 8 Yerg. 179.
Whether a sale and conveyance operate to vest the grantee with the right to maintain an action in his own name for the recovery of land, depends upon the fact, whether the person in possession asserts a title hostile to that of the grantor, or in subordination to it; or, also, whether he is estopped from denying the title of the grantor, and from setting up adverse possession, and is bound to surrender it without questioning his title. — Castleman v. Combs, 7 Mon. 273. In the suit in equity, the defendant set up his adverse possession against the right of complainant to have the title divested out of him. The chancellor held, that the defendant’s (Brunson’s) possession was not adverse to the mortgagee. The decree is conclusive on the defendant as to the title of the plaintiff, and the adverse character of his own possession. He is thereby estopped from denying the plaintiff’s title, and was bound by the decree to surrender possession of the land without questioning it. The chancellor could well have ordered in the decree that the plaintiff, in whom he had vested the title of the defendant, be put in possession, without leaving her to resort to an action at law. Under these circumstances, such being the character of defendant’s possession, the conveyance of plaintiff to Silas Brunson, pending the present action, terminated her title, and vested in the grantee a right to maintain an action in his own name, against the defendant, for the recovery of the land. If it be said that the possession of the defendant became adverse subsequent to the rendition of the decree, this question should have been submitted to the jury.
The court erred in giving the affirmative charge in favor of plaintiff.
Reversed and remanded.