70 Ala. 567 | Ala. | 1881
A motion is made by the appellee, to strike out the first, second and eighth assignments of error, which relate to the decree rendered on the 15th September, 1879, declaring the complainant was entitled to relief, and had a lien on the lands for the purchase-money due from Thomas, referring it to the register to ascertain and report to the succeeding term-the amount which was due. The ground of the motion is, that this decree was in its nature.final, and would have supported an appeal, and, as more than twelve months had elapsed after its rendition, before the suing out of the present appeal, it is not now open to revision.
The security or lien of the vendor, retaining the legal estate, is not destroyed, or impaired, because an action at law for the recovery of the purchase-money is barred by. the statute of limitations.—Relfe v. Relfe, 34 Ala. 500 ; Driver v. Hudspeth, 16 Ala. 348 ; Shorter v. Frazer, 64 Ala. 74. The vendee entering into possession under an executory agreement for a future conveyance, his possession is in subordination, not adverse, to the title of the vendor; and he can not, in the absence of a possession open and notorious, asserted as hostile to the right and title of the vendor, interpose the lapse of time to defeat the equity to charge the. lands with the payment of the purchase-money.—Seabury v. Stewart, 22 Ala. 207; Relfe v. Relfe, 34 Ala. 500; McQueen v. Ivey, 36 Ala. 308 ; Ormond, v. Martin, 37 Ala. 598; Farley v. Smith, 39 Ala. 38. In Relfe v. Relfe, supra, it is said : “ If the vendee is regarded as holding under the vendor — if his possession is the possession of the vendor — it would be a violation of all precedent and principle to allow the acquisition of title by the lapse of time. It would be like making lapse of time the origin of title in the tenant, against the landlord.” Under the facts of this case, if Thomas had remained in possession, it must be admitted that he could not invoke the statute of limitations, or the presumptions arising from the lapse of time, to protect his possession against the demand of the appellee to charge the lands Math the unpaid purchase-money. Iu his possession there was never any element of hostility to the title of the vendor, and there were repeated admissions and recognitions that the purchase-money was unpaid, accompanied with promises of payment, repelling any presumption of payment which could, in their absence, have been drawn from the lapse of time.
The possession of Thomas was not adverse; but he made sale and conveyance of the part, of the premises in controversy to Shealv, receiving the purchase-money with the exception of a small sum comparatively. Sliealy sold and conveyed to Long-shore, and he to Walker; and the possession under these sales and conveyances had been continuous for a period of nearly twenty years, accompanied with a claim of the entire, exclusive, legal estate. The conveyance by Thomas, though purporting to pass the fee-simple, was, it is true, operative to pass only the imperfect equity he. had in the lands. The subsequent conveyances had no other or larger operation. These conveyances, nevertheless, were color of title, asserted as operative to pass, and as actually passing, the entire legal estate, inconsistent with, and antagonistic, to the title of the true owner; and the possession under them was hostile and adverse to his title. Miller v. State, 38 Ala. 600; Tayloe v. Dugger, 66 Ala. 444. The possession having been open, visible, notorious, and continuous, for a period of more than ten years, barring the entry of the true owner, the title has become vested in the present appellee, the last successor to the possession.—Riggs v. Fuller, supra.
The distinction between the present case and that of Coyle v. Willdns, 57 Ala. 108, is, that in the latter case the entry by the alienee of the mortgagor was in subordination to the title of the mortgagee, with notice of it, and there was an absence of all evidence of a holding in hostility to 'it. There was, here, a want of all notice of the infirmity of Thomas’ title, or of the equity of the complainant. The sales and conveyances were of the entire fee, for a valuable consideration; and under them there was entry, continuous possession, and an actual, bona fide claim of title. If it was as bona fide purchasers of the legal estate the parties were claiming protection, they would be charged with notice of the nature and source of Thomas’ title, and notice of the equity of the appellee. The rules of law which would then prevail, have no application, when an adverse possession, founded on color or claim of title, is asserted
Errors have been assigned by the appellant. "Walker only, the, other parties against whom the decree, was rendered having been summoned, and refusing to join. As to the appellant, and the lands claimed by him, the decree of the chancellor must he reversed, with instructions to dismiss the bill. The cause will be remanded, that the decree may be enforced against the other lands not claimed by the appellant.