The action is one of statutory ejectment. The court, on the trial below, gave the general affirmative charge to find for the defendant, and the verdict of the jury was accordingly so rendered.
The evidence in behalf of the plaintiff, Prewitt, who is the appellant here, made out aprima facie case of title in him, such as would authorize a recovery, unless Ms case was overthrown by the countevailing evidence of the defendant, Mrs. Ashford. It was as follows: (1) A xoarranty deed from Richard Prewitt to Josephine Prewitt, dated April 27th, 1866. (2) A deed from Josephine Prewitt to the plaintiff, W. V. Prewitt, dated February 6th, 1883. (3) The fact of uninterrupted possession under these deeds; from April, 1866, to March 3d, 1888, which was within a few weeks of the time the present suit was brought. (4) A quit-claim, deed from Caroline Ashford to Richard Prewitt, the original owner, dated November 23d, 1875. This last deed was delivered as an escrow to J. B. Moore, to be by him delivered to the grantee, in the event of the affirmance by the Supreme Court of the decree rendered in the case of Lile v. Prewitt, involving litigation concerning the lands in controversy. This event happened October 11th, 1881. Richard Prewitt died November 23d, 1882, and the deed was delivered to his heirs in the year 1887.
*299It is not denied that this makes a prima facie case for the plaintiff. It is sought, however, to destroy the force of this chain of title, by showing that on March 12, 1877 — while the escrow deed of Mrs. Ashford was in the hands of Moore, awaiting delivery, and before the affirmance of the judgment in Lile v. Prewitt, in October, 1881, the event on which it was to be delivered — the legal title to the land was transferred from Richard Prewitt and his wife, Josephine Prewitt, to Mrs. Ashford, the defendant, by decree of the Chancery Court of Lawrence county. To show this, a decree of that court is introduced in evidence, rendered March 12, 1877, and affirmed on appeal to this court in the year 1879, which purports to. accomplish this result. On a bill filed by Mrs. Ashford against said Richard Prewitt and wife, and others, claiming an equity in said lands by reason of the alleged fact that her husband, Thomas H. Ashford, had bought and paid for them with money belonging to the complainant’s statutory separate estate, this equity was established, and a decree rendered declaring that, “the legal and equitable title in and to” said lands “be, and the same are [is] hereby, divested out of the defendants in said cause, and are [is] vested absolutely in said complainant, Mrs. Ashford.”
It is further contended by the defendant, that this title thus acquired by Mrs. Ashford in March, 1877, did not pass to Richard Prewitt, or his heirs, under the escrow deed executed in November, 1875, and delivered in 1887. The contention is, that this decree was res adjudicate/, as to the title in question, because the escrow deed was a part of a compromise between the parties litigant, made pendente lite-, and that it shoiild have been brought to the attention of the Chancery Court by a supplementary answer, in accordance with the general rule declared in May v. Coleman, 84 Ala. 325, as applicable where a pending suit is compromised.
It is manifest, then, in view of this state of facts, that the plaintiff’s title must prevail in either of two cases: (1) if the decree of March, 1877, did not in fact operate to divest the legal title out of Richard Prewitt, and proprio vigore transfer it to Mrs. Ashford; or (2) if it did so divest and transfer it, and nevertheless the escrow deed from her to Richard Prewitt operated, on delivery, to relate back so as to vest such title in Mm, and this title passed under his warranty deed of April, 1866, eo instanti, to Mrs. Prewitt, and thence by her deed of November, 1875, to the plaintiff. The plaintiff insists on each of these contentions; and we repeat, that if either of them be correct, he ivas entitled to a verdict on the evidence contained in the record.
*300As to the first proposition. The chancery decree of March, 1877, did not, in our opinion, operate to vest the legal title of the lands in Mrs. Ashford, although it imports in express terms to do so. The reason is, that a Chancery Court, apart from the power conferred by statute, possesses no jurisdictional authority to divest by mere decree a title out of one party litigant, and vest it in another. A decree was not itself a legal title, and never operated proprio vigore to vest or divest title, according to the original principles of equity jurisprudence. It operated only in personam on the parties, and never in rem on the subject-matter in controversy. This rule is well settled. — 1 Pom. Eq. Jur. §§ 135, 170, 428; 3 lb. § 1317.
The statute ’recognizes only two modes in which a decree may divest title out of one party, and vest it in another, in cases •of conveyance, release, or acquittance. (1„) Where the chancellor decrees that the party shall convey, release or acquit, by a time specified in his decree, and he fails to do so ; in this event, “such decree operates in all resi^ects as fully us if the conveyance, release, or acquittance, was made.” (2.) Where such decree has been made ordering a conveyance, •&c., and there is a default in its execution, the chancellor may then decree that the same shall “ be executed by the register, •of a commissioner, in the name of the party;” and “when so executed,” it is declared to be “ as valid in all respects as if issued by the party.” — Code, 1886, § 3595.
The chancellor did not pursue either of these statutory powers in the decree of March 12th, 1877, under consideration. Having no jurisdiction to divest or transfer title, except under the authority conferred by the statute, and having failed to pursue that authority, it follows that his decree was inoperative for this purpose. Mrs. Ashford never acquired more than an equity under the decree, and that equity can avail nothing as a defense to this suit, which involves only the legal title.
As to the second proposition. Even if we should hold, that, contrary to the above view, Mrs. Ashford did acquire the legal title to the land by virtue of the chancellor’s decree, we are further of opinion that she parted with this title by virtue of the delivery of the escrow deed of November 23d, 1875, executed to Richard Prewitt, and deposited with J. B. Moore, to be by him delivered to the grantee, on the affirmance by this •court of the decree in Lile v. Prewitt. That contingency did happen, as we have stated, in October, 1881, and the deed was •afterwards delivered to the grantee’s heirs.
The established rule in reference to an escrow of this nature is, that when the condition upon which it is to be delivered is *301performed, or happens, if necessary to protect the intervening rights of the grantee, the instrument will be held to relate back, and take back nuno pro tunc, from its first delivery as an escrow.—Shirley v. Ayres, 45 Amer. Dec. 546; Foster v. Mansfield, 37 Ib. 154; Hatch v. Hatch, 6 Ib. 67; Tiedeman on Beal Drop., § 815. This principle especially applies where either of the parties to the deed dies before the condition is performed, or before final delivery, and the condition is after-wards performed; dr the delivery consummated.—Ruggles v. Lawson, 7 Amer. Dec. 375; Shep. Touch. 59; Foster v. Mansfield, 37 Amer. Dec. 154. And, moreover, where the grantee dies after the first delivery, and before the final one, the trustee-holding it may deliver it to the grantee’s heirs, and it will be held, ordinarily, to have taken effect in the ancestor, so as to-transmute title through him to the heirs by inheritance, where nothing intervenes to prevent.—Stone v. Duval, 77 Ill. 475; Jones v. Jones, 16 Amer. Dec. 40-41, note.
The heirs here acquired no title, because it was cut off by the warranty deed of Bichard Prewitt to Josephine Prewitt, and passed from the latter by her deed to the plaintiff, although it was a quit-claim. The legal effect of a deed, with covenants of warranty, is to pass eo instanti any title subsequently acquired by the grantor, and, where there is no intervening equity, it may relate back to the time when the conveyance was executed.—Parker v. Marks, 82 Ala. 548; Bone v. Lansden, 85 Ala. 562; Chapman v. Abrams, 61 Ala. 108.
And wdiile a quit-claim will not estop the maker from after-wards acquiring and holding an adverse interest in the land conveyed, yet such a deed will convey such of the covenants, of the former grantor as run with the land; and the grantee in a quit-claim deed will be entitled to such further title of estate as may ensue, at any time, to the grantee of such former grantor,, by virtue of such covenants.- —Johnson v. Williams, 1 Amer. St. Rep. 243.
This effect of the final delivery of the escrow deed was .not, in our opinion, interrupted by the decree of March 12th, 1877. Nor did that decree preclude Bichard Prewitt from claiming the benefit of the title acquired under this deed. This title was not involved in the issue of that, or any other suit between, the parties, or their privies, prior to the present one. Its very existence was dependent on an extrinsic event, which might never have happened, and in fact did not happen before the suit, in which that decree was rendered, was finally concluded,, viz., the affirmance of a decree by this court in another case, which did not occur until October, 1881. The case does not fall within the principle declared in May v. Coleman, 84 Ala. *302325, which was the compromise of a right existing at the time, not, like the one here under consideration, a compromise where no right at all might ever accrue, and if it did, even then in no event except upon a contingency having no connection whatever with the pending suit.
The proceedings in the case of Heflin v. Ashford, 85 Ala. 125, which appear in this record, clearly involved no issue which affect this case, under the principles above declared.
It follows from what we have said, that the court erred in the charge given, and in admitting in evidence the proceedings of the chancery suits to which objection was taken by. appellant.
The plaintiff, on the facts proved, would have been entitled to the general affirmative charge in his favor.
Reversed and remanded.