These authorities, and the cases referred to in them, may suffice to show, that in cases where the title is complete in the tenants in common, there are circumstances under which an adversary claim to the entirety may be set up by one of the tenants so as to bar the right of his co-tenant by the operation of the statute of limitation. We regard the case of Doe ex dem. Fishar and Taylor v. Prosser, supra, as correctly stating the law upon this point. It has, so far as we have examined the question, been generally followed by the American courts. It is well settled, that although the statute of limitations does not apply to any demand purely equitable, yet courts of equity, acting according to legal analogies, adopt it in cases analogous to those in which it applies at law: Stackhouse v. Barnston, 10 Ves. 453; Cholmondely v. Clinton, 2 Meriv. 173. But where the remedy at law and in equity is concurrent, the statute of limitations applies alike to both forums: Wood v. Wood et al., 3 Ala. 756; Johnson v. Johnson, 5 Id. 90, and cases cited.

Let us apply the analogy of the statute to the case made by the facts before us. Had the compainants' title been legal, and had their ancestor, or the person from whom he purchased, actually been ousted for more than twenty years, his right of entry and his action of ejectment to recover the possession would have been barred. Had an action, before the expiration of the twenty years, been instituted for an account for rents and profits, then the party could only have recovered for six years back, by analogy, to the action of account: Lewis v. Stafford, 4 Bibb, 319; Prince v. Heylin, 1 Atk. 493. In the case before us, the complainants claim to have derived their interest of one moiety of the land, and the right to a participation to the same extent in the rents and profits, as heirs of Thomas Johnson, who purchased the same of J. Lyon, on the eleventh day of March, 1816, in the state of South Carolina.

It appears that on the eighth day of April, 1813, Daniel Juzan, James Lyon, and David Files entered into a written agreement, by which Juzan sold to L. and F. the land in controversy, for which it was agreed they should pay him four thousand dollars, as follows: six hundred dollars prompt payinent, and five hundred dollars every six months thereafter, until the whole should be paid; and when the whole purchase money should be paid, Juzan was to make them a title to the land, he retaining that portion of it which he then had in occupation, until the completion of the payment. This agreement was signed by all the parties. Two receipts of money by Juzan are

indorsed upon it-one of two hundred and fifty dollars, bearing the same date with the agreement, which does not, however, state by whom such payment was made; the other for three hundred and fifty dollars, paid on the day following—namely, the ninth of April, 1813, by David Files. No other payment appears to have been made under this agreement, and there is no proof which of the two, Files or Lyon, paid the two hundred and fifty dollars. The bill charges that upon the payment of the six hundred dollars by Files and Lyon, they took possession of such portion of the land as was not reserved by the agreement for the use of Juzan, and erected a grist and saw mill on a creek upon the land. The defendant, Toulmin, answers, that as to the payments, he has "no personal or accurate knowledge," and requires strict proof thereof. He also states that Files took possession of a few acres of said land, after the agreement was made by him and Lyon with Juzan, in 1813, and erected a mill and a small log cabin; but that the mill was soon destroyed, and Files having lived in the cabin about a year, abandoned it and removed from the county of Mobile and went to reside in some other section of the state; "that about the same time Lyon left the state, and has never since returned, nor, as far as respondent knows, has he since been heard of."

The defendant further answers, that at the time Files left the place, both he and Lyon intended to abandon the contract with Juzan for the purchase of said land, but that three years subsequent thereto, Files returned to Mobile and opened a new negotiation with Juzan for the purchase of said tract, which, it appears, embraced some one thousand nine hundred acres, and upon which Juzan had continued to reside, "and at this time said Files caused to be recorded the original agreement for the purchase of the premises referred to in complainants' bill "— which original agreement, at the time of the new negotiation, the answer avers had been forfeited on account of the non-fulfillment of its stipulations on the part of Files and Lyon. The answer then sets out the purchase made by Files of Juzan of said land and the execution of a deed by the latter to Files, on the twenty-second of April, 1816, in consideration of the sum of three thousand nine hundred dollars, with the usual covenants of warranty, and a mortgage of the same date, upon the lands, executed by Files to Juzan to secure the payment of two thousand dollars by the last day of June, 1816, and the further sum of one thousand four hundred dollars by the fifteenth day of December following. This deed and mortgage appear to have been duly ac

knowledged and recorded in the clerk's office of the county court of the county of Mobile, where the land lies. The original agreement appears to have been received for record and recorded on the tenth of January, 1816, as is shown by the certificate of the clerk indorsed upon the same, but without any proof or acknowledgment of its execution. The deed from Lyon to Johnson, above alluded to, purporting to convey an undivided moiety of the land, in consideration of one thousand dollars, and with the usual covenants of warranty, appears to have been spread upon the record in Mobile, on the fifteenth of September, 1818, upon proof of its execution in the state of South Carolina, the certificate of which is informal and insufficient to admit it to record. It appears also that Files continued in possession until 1820, when he departed this life, and administration was granted on his estate to one Austill, upon whose petition, in 1823, to the orphans' court for the sale of said land by reason of a deficiency of the personal assets to pay the debts of the intestate, said land was duly ordered to be sold by said court, which order was made the tenth of March, 1824; and commissioners were appointed, who made the sale the first Monday in May, 1825; the same being sold subject to the mortgage given by Files to Juzan. The defendant Toulmin became the purchaser, at the price of eight hundred and fifty dollars, which added to the sum then due upon the mortgage which Toulmin has since paid, made the sum of three thousand nine hundred and one dollars. In regard to this purchase, Toulmin answers that at the time he made it "he fully believed, and still believes that the said sale was legal, and that it completely divested the heirs of said David Files of all title either at law or in equity, and that at the time of said purchase he was wholly ignorant of any title or right in or to said premises of said Lyon, or of any other person claiming through or under him," etc. The answer also states, that immediately after said purchase, Toulmin took possession, etc. The commissioners' deed to Toulmin bears date the sixth of June, 1828. Toulmin has also proved a deed from the heirs of Juzan, to whom he tendered an interest in his purchase, but all of whom, except one of them, declined, and that one has an interest with him in the land. The bill in this case was filed on the twenty-seventh day of February, 1846. These are substantially the facts disclosed by the record, embracing copies of the several deeds exhibited, and by the consent of counsel, regarded as proved.

It will be observed that Files, and those claiming to hold under

him, have been in the exclusive perception of the rents and profits of the land since the twenty-second of April, 1816, a period of nearly thirty years: that he and they have not only been in receipt of the profits, but in the exclusive and uninterrupted possession of the premises during all this time, holding under a deed, duly recorded (and which registration gives notice to the world), made to Files individually. Now had the title of Files and Lyon been legal, and had the latter, or those claiming under him, instituted his or their action of ejectment, under the decisions above referred to, a jury might have presumed, and it would have been their duty to have found an actual ouster: and consequently a recovery could not have been had.

But it is strenuously contended that the registration of the original agreement by Files, as stated in the answer to have been made at the same time the new arrangement was entered into, is an admission, on his part, that he held in subservience to such agreement, and not hostile to it. We would observe that either the certificate of the clerk or the answer is at fault in stating the time of the registration of this agreement. The first shows it to have been the tenth of January, 1816; the latter, the twenty-second of April following. But, considering it in the strongest light against the defendant, what does placing the agreement on record amount to? One would naturally suppose, in the absence of all explanatory evidence, or of any circumstance conducing to a contrary conclusion, that Files considered this agreement as still subsisting, and that his entry and possession was in subordination to the title thus recognized. But, it must be remembered, the fact of recording is stated in the answer, and the defendant in the same connection, and in the sentence immediately succeeding the averment, states that at the time it was considered both by Files and Juzan that the original agreement had been forfeited by reason of the non-compliance by Files and Lyon with its stipulations. Should we not regard what the defendant says in his favor, as well as that portion of his answer which makes against him, the whole being irresponsive to any allegation in the bill and in reference to the same agreement? Be this as it may, we think the conclusion which the counsel for the plaintiffs in error draws from this act can not be supported. The agreement was not such an instrument as the law required or authorized to be recorded. It was not proved or acknowledged, so as properly to be registered, if the law had been otherwise. What conceivable object could Files have had in lodging it with the clerk? To this inquiry,

the record furnishes no answer. Certain it is, that he made a new agreement with Juzan different from that, and on his individual account, which is inconsistent with the idea of his insisting upon the original agreement as valid. Besides, if the ordering to be spread upon the record the original agreement, which the law did not recognize as an instrument for registration, and this, too, without acknowledgment or proof, be an admission by Files of its validity, as showing a joint interest in Lyon, the same argument, when applied to the subsequent registration of Files' individual deed from Juzan, which the law admitted to record, and which was duly acknowledged, would, a fortiori, establish a contrary conclusion. When both instruments were recorded, such record would but furnish notice of inconsistent repugnant agreements, and of the abandonment of the agreement of 1813, by which Files and Lyon contracted for a joint interest, by entering into a new and different contract by which Files acquires the title exclusively in himself. We conclude, therefore, that the recording of this instrument is not sufficient to prevent the adverse claim of Files from dating contemporaneously with his possession under his deed from Juzan, and in this view, according to the legal analogy, the statute of limitations should put an end to this controversy: See Iler v. Routh, 3 How. (Miss.) 276.

As to the defense insisted on by the counsel for Toulmin, namely, that he is a bona fide purchaser without notice of Lyon's claim, it is not made out. If he purchased without notice, the answer is too inartificially drawn to enable us so to determine. When a respondent would rest his purchase upon this defense, he must deny notice fully and positively, though it be not charged in the bill, and if facts be charged from which such notice may be inferred, he must deny such facts. Tested by this rule, the answer in this particular is wholly insufficient.

But this aside, there is another, and to our minds a most satisfactory, ground upon which the relief prayed by this bill

should be denied.

The contract under which complainants claim to have derived their equity was entered into near thirty-four years before the filing of the bill. It was executory, requiring the vendor of their ancestor, before his interest in the land could completely attach, to pay a large sum of money. There is no satisfactory evidence afforded by the record before us that he ever paid one dollar. But conceding that he made the payment of two hundred and fifty dollars, which is indorsed on the agreement on