| Ark. | Feb 21, 1910
(after stating the facts). It is earnestly insisted by appellants that the testimony shows that they have become vested with the title to said lands by adverse possession; but we can not agree with their contention. It must be remembered that W. O. Cleveland went into possession of said lands under an agreement of purchase from his father-in-law, W. R. Aldridge, and that the purchase price was never paid. The payment of taxes by W. O. Cleveland, the making of improvements by him, and his claiming the land to be his own were all acts not inconsistent with the rights of his vendor, W. R. Aldridge. In such cases the vendee’s outward acts of ownership must have been of such an unequivocal character as to impart a notice to his vendor that an adverse possession is intended to be asserted against him.
In the case of Tillar v. Clayton, 76 Ark. 405" date_filed="1905-07-29" court="Ark." case_name="Tillar v. Clayton">76 Ark. 405, the court said: “The statute of limitations does not run against a vendor in favor of a vendee holding under a contract for sale and purchase; nor does it run where the original possession of the holder seeking to plead the statute was in privity with the rightful owner, until there be an open and explicit disavowal and disclaimer of holding under that title and assertion of title brought home to the other party.”
The object and purpose of this suit, as shown by the pleadings, was to try the title to the land in controversy, but the undisputed evidence shows that W. O. Cleveland went into possession of the land in controversy under a contract for the purchase thereof, and that the purchase price remains due and unpaid. Hence we will treat the answer as amended to correspond with the proof. Roach v. Richardson, 84 Ark. 37" date_filed="1907-07-15" court="Ark." case_name="Roach v. Richardson">84 Ark. 37, and Cases cited.
Where possession of land is given under an executory contract for the purchase thereof and the purchase money is due and unpaid, the vendor may, by ejectment, recover possession of the land for the purpose of applying the rents and profits to the payment of his debt. Smith v. Robinson, 13 Ark. 538; Fears v. Merrill, 9 Ark. 559; Newsome v. Williams, 27 Ark. 632" date_filed="1872-12-15" court="Ark." case_name="Newsome v. Williams">27 Ark. 632.
It will not be necessary to consider whether or not the administrator of the estate of W. R. Aldridge, deceased, should have been joined as a party plaintiff to the suit, for the reason that no objection is made that the heirs were not the proper parties to bring this action. See Sims v. Richardson, 32 Ark. 297" date_filed="1877-11-15" court="Ark." case_name="Simms v. Richardson & May">32 Ark. 297.
The pleadings show that the action was in ejectment to try-the title to the land, and on the issue thus joined the court rendered judgment for appellees.
Treating the action as, under the undisputed facts, we have determined it to be, one in ejectment to recover the possession of the land for the purpose of receiving the rents and profits to discharge the incumbrance against it, and considering the pleadings amended to conform to the proof, the right of appellants to bring a suit to redeem is not barred.
Therefore, the judgment will be affirmed.