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Buford, for the defendant.
By Court, DARGAN, O.J. The bill and the amendments thereto show that Stephen B. Saunders, deceased, in his life-time, sold the land in controversy to Milton C. Conner, who gave his note for the purchase money, amounting to two thousand dollars, payable on the first of January, 1841. No deed was then executed, but Saunders gave his bond to make titles. The note for the purchase money was transferred to the complainant, and its payment was guaranteed by Saunders, the payee, and one Tripp. After the note fell due, the complainant extended the time of payment, and took a new note from Conner, including interest, and gave up the note given by Conner to Saunders at the time of the purchase. Milton C. Conner then sold the land to John F. Conner, and transferred to him the bond for titles executed by Saunders. These facts are not denied by the answer of John F. Conner, who alone answered the bill, but he insists that by renewing the note and extending the time of paying the purchase money, the lien is lost. He further alleges that since the death of Saunders, he had obtained a decree in the orphans' court, against his executors, requiring them to execute to him a deed to the land, which they had done in accordance with the decree, and that thereby he had obtained the legal title. The question growing out of the foregoing facts is, whether the land is chargeable with the payment of the note executed by Milton C. Conner to the complainant, in lieu of the note given for the purchase money, and which was in extension of the time of
It is a well-settled rule, that the vendor of real estate, who has not executed a deed to the purchaser, holds the legal title as a security for the payment of the purchase money; and if he has executed a bond to make titles when the purchase money is paid, the contract in a court of equity will be considered in the nature of a conveyance to the purchaser and a reconveyance back, by way of mortgage: Haley et al. v. Bennett, 5 Port. 452; Chapman v. Chunn, 5 Ala. 397; Roper v. McCook and Robertson, 7 Id. 318. In the case before us, the pleadings do not show the form of the bond, nor was it produced on the trial as evidence, so far as we can discover from the record. We can not therefore infer that there are any peculiar provisions contained in the bond, by which the lien of the vendor was waived, or that would compel him to make title, notwithstanding the purchase money had not been paid; but we must consider the right of the vendor in the nature of a mortgage to which is
attached all the equitable rights and incidents of a mortgage intended to secure the payment of the purchase money. As it is clear that Saunders retained a lien on the land in the nature of a mortgage to secure the payment of the purchase money, the transfer of the note to the complainant carried with it the lien; for the note which was given for the purchase money must be considered as the principal, and the lien as an incident thereto to secure its payment, and the transfer of the note will recessarily operate as a transfer of the lien, unless by the contract it appears that the parties did not intend that the lien should pass. In the case of Roper v. McCook and Robertson, supra, this court held that the equitable lien of a vendor would pass to his assignee of a note given for the payment of the purchase money. So in the case of White v. Storer et al., 10 Ala. 411, it is said that the lien of a vendor, who has conveyed the land to a purchaser and taken his notes for the purchase money, is not lost by transferring the notes to another without indorsement, but that the holder of the notes may enforce the lien against the land in the hands of the purchaser or his vendee with notice. Now I apprehend, if the equitable lien will pass with the note to the assignee of the vendor, when he has executed a deed for titles, it will not be denied that the lien will pass with the note, when the vendor retains the legal title to secure its payment.
Nor was the lien lost by extending the day of payment and taking a new note from the purchaser. The consideration of this new note was the purchase money. The debt was therefore the same, although the day of its payment was postponed. The lien is an incident to the debt, and attends upon it until the debt is paid, or extinguished, or the lien itself by contract is destroyed. There is nothing growing out of the contract between the complainant and Milton C. Conner, by which the payment of the purchase money was postponed, from which we could infer that it was the intention of the parties that the lien should be abandoned or released. We must therefore hold that it still continues as a security for the debt.
It is not necessary to notice the fact relied on in the answer, that John F. Conner had procured the legal title, for that allegation is not proved, nor is it responsive to the bill; but if it had been proved, it would be difficult to perceive how he could have insisted on the position of a bona fide purchaser without notice, for as he took from Milton C. Conner the bond of Saunders to make title, he should have ascertained whether the pur. chase money was paid or not. He probably would have been charged with notice of the complainant's equity, even had he shown that he had acquired the legal title; but it is not necessary to decide this point, for as the case stands
upon ord, he is the assignee of the bond merely, and his equitable title is subject to the lien of the complainant.
In no aspect of the case can we perceive any error, and the decree of the chancellor must be affirmed.
VENDOR'S LIEN UPON REAL ESTATE FOR UNPAID PURCHASE MONEY: Soo Lupin v. Marie, 21 Am. Dec. 256; Lagow v. Badollet, 12 Id. 258, note, and cases cited therein; Tiernan v. Beam, 15 Id. 557; Clarke v. Curtis, 37 Id. 625; Winborn v. Gorrell, 40 Id. 456; Clower v. Rawlings, 47 Id. 108.
BY ASSIGNMENT OF NOTE GIVEN FOR PURCHASE PRICE OF REAL ESTATE the lien of the vendor passes: See Graham v. McCampbell, 33 Am. Dec. 126, and note; Lagow v. Badollet, 12 Id. 258; Johnson v. Grathiney, 14 Id. 135. "To the same point is Wells v. Morrow, 38 Ala. 125, citing the principal caso. But the contrary doctrine has been held in Jackman v. Hallock, 13 Id. 627; Schnebly v. Regan, 28 Id. 195; note to Lagow v. Badollet, 12 Id, 263; Briggs v. Hill, 38 Id. 441; Hall's Ex'r v. Click, 39 Id. 327.
BY TAKING New Note, VENDOR'S LIEN IS NOT Lost: Honore v. Bake. well, 13 Am. Dec. 147, and note.
VENDOR HOLDS LEGAL TITLE AS SECURITY FOR PAYMENT OF PURCHASI MONEY, where no deed has been executed: Kelley v. Payne, 18 Ala 317.
JOHNSON v. TOULMAN.
118 ALABAMA, 60.) WHERE LEGAL TITLE IS COMPLETE IN CO-TENANTS, THERE ARE CIROUM.
STANCES UNDER Winch ADVERSE CLAIM to the entirety may be set up
by one of the tenants, so as to bar the right of his co-tenant. ALTHOUGH STATUTE OF LIMITATIONS DOES NOT APPLY TO DEMAND PUBELY
EQUITABLE, yet courts of equity, acting according to legal analogies,
adopt it in cases analogous to those in which it applies at law. WHERE REMEDY AT LAW AND IN EQUITY IS CONCURRENT, the statute of
limitations applies alike in both forums. BTATUTE OP LIMITATIONS-ADVERSE POSSESSION--ACKNOWLEDGMENT TO
TAKE CASE OUT OF STATUTE.-Two parties enter into the possession of real estate under an agreement to purchase, which agreement is afterwards forfeited, and the occupants abandon. One of the parties afterwards returns and takes an individual deed for the same property, which deed, together with the original forfeited agreement, he causes to be recorded. Held: That the recording of said agreement was not such an acknowledgment of his co-tenant's title as would prevent the running of
the statute from the time of recording the individual deed. WHERE DEFENSE “ Bona FIDE PURCHASER WITHOUT NOTICE” is RELIED
UPON, notice must be denied fully and positively, though it be uot charged in the bill; and if the facts be charged from which such notice
may be inferred, such facts must be denied also. COURTS OF EQUITY WILL NOT INTERFERE to GRANT RELIEF where there
has been gross laches in prosecuting rights, or long acquiescence ir the assertion of adverse claims.
The bill in this case was filed by the heirs of Thomas JohnBon against Theophilus Toulmin and the heirs of D. Juzan and D. Files. The remaining facts appear from the opinion.
Sewall, for the plaintiffs.
By Court, CHILTON, J. It is undoubtedly true as a general proposition, that the possession of one joint tenant, coparceper, or tenant in common, is the possession of his co-tenant, and is regarded as in support of their common title: See 2 Greenl. Cruise on Real Prop. 393, sec. 14, and the American cases collected in note 1. But it is equally well settled, that one tenant in common may disseise another. What acts, however, shall constitute such disseisin, or ouster, is not so well agreed upon by the authorities. The simple fact that one tenant in common receives the whole profits, is not sufficient to divest the possession of his co-tenant: Willison v. Watkins, 3 Pet. 51; Chambers v. Chambers, 3 Hawks, 232 [14 Am. Dec. 585); 2 Greenl. Cruise on Real Prop. 393. Neither are acts of ownership necessarily to be construed in tenancies in common as acts of disseisin. It is said to depend upon the intent with which they are done, and their notoriety as affording evidence of notice as to the adverse character of the possession.
It seems formerly to have been held, that a sole claim by one tenant, without more, could never change the character of the possession: 2Greenl. Cruise on Real. Prop. 394, sec. 15, and note. But the current of English, as well as American cases, sustains the doctrine, that an ouster may be presumed from an exclusive and peaceable occupancy for a long space of time.
In Doe ex dem. Fishar and Taylor v. Prosser, 1 Cowp. 217, the tenant bad occupied thirty-six years. Lord Mansfield said that such length of possession was more than quadruple the time given by the statute for tenants in common to bring their action of account, if they had thought proper to do so, nimely, six years. “But in this case,” he added, “ there is no evidence whatsoever of any account demanded, or of any payment of rents and profits, or of any claim by the lessors of the plaintiff, or of any acknowledgment of title in them, or of those in whom they
would now set up a right; therefore I am clearly of opinion, as I was at the trial, that an undisturbed and quiet possession for such a length of time is a sufficient ground for the jury to presume an actual ouster, and that they did right in so presuming." The other judges concurred in his opinion. It was conceded in that case, that if the tenant in common held possession eo nomine, no length of time would bar his co-tenant; for, holding as tenant in common was an affirmation of his co-tenant's title, as well as his own. It was further said by Lord Mansfield, “ that some ambiguity seems to have arisen from the term actual ouster,' as if it meant some act accompanied by real force, and as if a turning out by the shoulders were necessary. But that is not so. A man may come in by rightful title, and yet hold over adversely without a title." In Jackson ex dem. Bradi et al. v. Whilbeck, 6 Cow. 632 (16 Am. Dec. 454), the same doctrine was asserted by the supreme court of New York, upon the authority of the above case in Cowper. In Mehafy v. Dobbs, 9 Watts, 363, it was held that such presumption of ouster might be indulged from possession exceeding twenty-one years. In Frederick et al. v. Gray, 10 Serg. & R. 182, Tilghman, C. J., says: “ When one tenant in common enters on the whole, and takes the profits of the whole, and claims the whole exclusively for twenty-one years, the jury ought to presume an actual ouster, though none be proved.” In Bollon v. Hamilton, 2 Watts & S. 294 (37 Am. Dec. 509), the supreme court of Pennsylvania review the former decisions of that state, and they ingrafted a qualification upon the doctrine, formerly held in the two cases last above cited, holding that where a claim of exclusive ownership by the tenant was manifested by his acts, “ such acts ought so necessarily and notoriously to import a claim of exclusive right, as to apprise the co-tenant of the nature and existence of it;" and a majority of the court held, that although the exclusive perception of the profits by one tenant in common, for a period exceeding twenty-one years, raised a natural presumption of ouster, upon which the jury may find the fact to exist, if it satisfies their minds, yet the law will not, from this fact merely, raise a presuniption of such ouster. In Abercombie v. Baldwin et al., 15 Ala. 363, this court held, as the principle deducible from many authorities, cited in the opinion of the late chief justice, that the possession of one tenant in common may become antagonistic, and exclusive of a co-tenant, and will become so, by an unequivocal and notorious denial of the right of his co-tenant.