The plaintiff introduced in support of the deed made by the Sheriff to W. A. Lash, Sr., on January 1st, 1878, but bearing daté November 2nd, 1869, 11 am execution and Sheriff’s return showing the 'sale of the lands a/nd
In Brown v. Brown, Justice Natis delivering the opinion of the Court and referring to the authorities cited in Avent v. Arrington, said, in discussing and giving the sanction of this Court to the charge of the Judge below, “The possession of Javan Davis and his assignee under the bond for title was the possessioh of the vendor, under whom they claim, until the pur olíase money was paid.” Wood, in his valuable work on limitations (2 vol., pp. 648, 649) says: “But where a contract is made for the sale of land, upon the performance of certain conditions and the purchaser enters into possession under the contract, his possession from the time of entry is adverse to all except his vendor, and it seems now to be well settled that after the p 'er-fomanoe by him of all the conditions of the contract, he from that time holds adversely to the vendor and full per-foronance is treated as a sale and the party in possession may acquire a good title as against the vendor by the requisite period of occupancy.” In a note the author cites numerous authorities from various courts sustaining the doctrine that whenever a person, occupying land under an executory agreement of another to convey, pays the purchase money and places himself in such a position that he can demand title, his possession immediately becomes adverse to him who has contracted to convey. Beard v. Ryan, 73 Ala., 37; Catlin v. Deller, 38 Conn., 26; Stowher v. Griffin, 20 Ga., 312; Paxson v. Bailey, 17 Ga., 600; Brown v. King, 5 Metcalf, 173. The Supreme Court of Georgia defined color of title to be “any thing in writing, connected with the title, which serves to define the extent of the claim.” Field v. Boynton, 33 Ga., 242. In Bell v. Longworth, 6 Ind., 273, it was held that where one enters into possession
Viewing the sheriff’s deed as an attempted conveyance executed to W. A. Lash, Sr., after his death, it would be obviously void for want of a grantee and for failure to deliver. But it was insisted that it would operate to pass the fee to his heirs who were known and could be identified. If we were at liberty to treat the words “W. A. Lash, Sr., and” as surplusage, then the delivery to W. A. Lash, Jr., who is shown to have been at the date of delivery one of the heirs, would enure to the benefit of the other heirs and tenants in common. But it seems to be a well established principle of interpretation that a deed executed to A, who is at the time dead, or his heirs, is good, if his heirs can be indentified, for the reason that he will take if living and he has nc heirs until his death. No such uncertainty arises, therefore, as in the case of a grant to A or B both living. 3 Washburn, 279; Hazon v. Page, 2 Wallace, 607; Ready v. Kearsley, 14 Mich., 224. But a deed to a person not then living “and his heirs” is void because the word “heirs” is a word of limitation and not of purchase. Hunter v. Watson, 12 California, 363.
We concur with his Honor in the opinion that the issuing of the summons by Nelson in 1884 did not under the circumstances arrest the running of the statute. We do not deem it necessary to notice the other assignments of error, though all have been carefully reviewed. We think, therefore, that as the return described the land, named the purchaser, and showed the payment of the purchase money, it
Affirmed.