47 So. 1015 | Ala. | 1908
— Hammond appears to have been the common source of title asserted by the parties litigant. The plaintiff, appellant, claims under a conveyance executed to him by Hammond on December 16, 1873, and the defendants, heirs at law of John R. Dean, claim under an instrument executed by Hammond, on November 15, 1873, to John R. Dean. The instrument to Dean, described therein as the “second party,” is in the form of a warranty deed, except that it contains at its end the provisions which we quote: “Know the above obligation is such that whereas the said party of the second part pays or causes to be paid the party of the first part his two several notes of even date for one hundred dollars each this obligation to be in full force and effect, otherwise to be null and void.” It was shown that a note for said sum, executed by Dean to Hammond on November 15,1873, was in existence about 1895, and was then unpaid. Indeed, it is not contended that said notes had been in fact paid, though it is insisted that the presumption, from such lapse of time, should be indulged that the notes referred to in the instrument had been paid. Under the influence of the quoted provisions of the instrument we cannot construe it, as a whole otherwise than a conditional conveyance, which, to invest title in Dean, was dependent upon the’payment in full of the notes referred to therein. If the instrument was - interpreted to have conveyed title to Dean in prsesenti, manifestly the condition quoted, as rendering the obligation a nullity, would be ignored, thus defeat
The presumption of payment, after 20 years from maturity of the notes, relied upon by appellees, cannot avail them in this character of action — ejectment by the vendor’s grantee. That presumption is, in nature, a statute of limitations, which, were the action for the unpaid purchase money, would be serviceable to defeat a recovery thereof by the vendor or his successor in right. But the action here involves the legal title, and the presumption stated cannot effect to divest and invest that title. Such presumption is, as said in the books, a shield, and cannot be converted into a weapon of offense. The question has been, in principle, fully considered by the courts of New York, and .their announcements are authority for our stated conclusion thereon. —Lawrence v. Ball, 14 N. Y. 477; Morey v. Farmers’ Loan & Trust Co., 14 N. Y. 302; Brady v. Begun, 36 Barb. (N. Y.) 533. See 22 Am. & Eng. Law, pp. 605, 606. The relation between the vendee in possession and the vendor is that of trust; the vendee being the trustee, for the vendor, of the unpaid balance of the purchase money, and the vendor being the trustee, for the vendee, of the legal title remaining in such vendor. — Sellers v. Hayes, 17 Ala. 749. This is the foundation for the doctrine that inhibits the creation of any right, effecting the title of the vendor, by mere lapse of time or presumptions usually arising therefrom. —Collins v. Johnson, 57 Ala. 304; May. Dig. p. 88, subhead 243.
So long as Dean held the possession under such an executory agreement, and the condition of payment was unmet, neither his possession nor that of those claiming
It therefore results that the affirmative charge for the defendant was erroneously given at their instance
The judgment is reversed, and the cause is remanded.
