sum is all that, with Since then, the only

the day it was executed, this inconsiderable any plausibility, can be claimed for him. recognition of the contract is his sale to Johnson, in 1816. He takes no steps whatever to complete the contract-no demand for rents and profits, but so far as the record discloses, there has been a silent, continuous acquiescence since the purchase by Files of his exclusive claim and possession. When the contract was made, in 1813, the country was comparatively unimproved. It was before the change of flag, and it was then difficult to determine anything respecting the prospective appreciation of the land in value. Lyon leaves the country voluntarily and never returns.

These and other circumstances bring this case within the principle frequently recognized by the courts of equity, as well as by the elementary writers upon the subject, "that long acquiescence and laches by a party out of possession, productive of much hardship and injustice to others, can not be excused except by showing some actual impediment or hinderance caused by the fraud or concealment of the party in possession, which will appeal to the conscience of the chancellor:" See Wagner et at. v. Baird et al., 7 How. 234, and cases cited. It has well been observed, that though no statute of limitations apply, yet the court of equity, acting upon a principle peculiarly its own, founded on the lapse of time and the staleness of the demand, in its desire to promote the peace and repose of society, will not interfere to grant relief when there has been gross laches in prosecuting rights, or long acquiescence in the assertion of adverse claims. See case above cited, and Juzan v. Toulmin, 9 Ala. 694 [44 Am. Dec. 448], and cases cited.

Here there has not only been a gross neglect in the assertion of rights, but a total failure to comply, on the part of Lyon, with the stipulations of the contract in the payment of the money which he covenanted to pay before he could obtain a title to the land. This is, of itself, in our opinion, a sufficient reason to refuse relief. In this country, where the price of lands is so fluctuating-where they so frequently change hands, there is more reason for discouraging stale and antiquated · demands in respect of their purchase, and for requiring the exercise of reasonable diligence in the prosecution and assertion of rights relating to them, than in those countries where such description of property has a more permanent and fixed value.

After the most mature deliberation we have been able to give

this case, we are satisfied the decree of the chancellor, denying the relief prayed, should be affirmed.

THAT ONE CO-TENANT MAY OUST ANOTHER AND HOLD ADVERSELY TO HIM, and what constitutes such ouster and adverse possession, see Town v. Needham, 24 Am. Dec. 246; Jackson v. Whitbeck, 16 Id. 454; Thomas v. Garvan, 25 Id. 708; Den v. Webb, Id. 711; Gillaspie v. Osburn, 13 Id. 136; Coleman v. Hutchenson, 6 Id. 649; Lodge v. Patterson, 27 Id. 335; Den ex dem. Meredith v. Andres, 45 Id. 504; Harmon v. James, Id. 296, and note; Baird v. Baird's Heirs, 31 Id. 399; Philips v. Gregg, 36 Id. 158, and note 166; Watson v. Gregg, Id. 176; Bolton v. Hamilton, 37 Id. 509, and note; Colburn v. Mason, 43 Id. 292, and note; Freeman on Co-tenancy and Partition, sec. 301.

COURTS OF EQUITY ARE NOT WITHIN STATUTE OF LIMITATIONS IN TERMS, but have always felt bound to conform to its principles: Wanmaker v. Buskirk, 23 Am. Dec. 748, and note; Pugh v. Bell, 15 Id. 142; Cocke v. McGinnis, 17 Id. 809; Shelby v. Shelby, 5 Id. 686; Frame v. Kenny, 12 Id. 367, and note; Collard v. Tuttle, 24 Id. 627; Armstrong v. Campbell, Id. 556, and note; Belknap v. Gleason, 27 Id. 721; Kane v. Bloodgood, 11 Id. 417; Waller v. Demint, 25 Id. 134; Reeves v. Dougherty, 27 Id. 496; Reed v. Bullock, 12 Id. 345; Perkins v. Cartmell, 42 Id. 753; Smilie v. Biffle, 44 Id. 156; Askew v. Hooper, 28 Ala. 634.

WHERE REMEDY AT LAW AND IN EQUITY IS CONCURRENT, statute applies: Dugan v. Gittings, 43 Am. Deo. 306.

ACKNOWLEDGMENT TO REMOVE BAR OF STATUTE OF LIMITATIONS: See Elliott v. Leake, 32 Am. Dec. 314; Heyer v. Pruyn, 34 Id. 359, note.

WANT OF NOTICE MUST BE DENIED POSITIVELY by one who relies upon it as a defense: See Nantz v. McPherson, 18 Am. Dec. 216; Blake v. Jones, 21 Id. 530.

COURTS OF EQUITY DISCOUNTENANCE LACHES AND NEGLECT, and refuse their aid to stale demands: Perkins v. Cartmell, 42 Am. Dec. 753; Pugh v. Bell, 15 Id. 142; Frame v. Kenny, 12 Id. 369, note; Askew v. Hooper, 28 Ala. 634.

NOTICE MUST BE DENIED POSITIVELY AND EXPLICITLY to constitute de fense "bona fide purchaser without notice:" Ledbetter v. Walker, 31 Ala. 175, citing the principal case.

SMITH V. MUNDY.

[18 ALABAMA, 182.]

SALE BY SHERIFF AFTER RETURN DAY OF WRIT OF EXECUTION IS VOID, and a purchaser at such sale acquires no title.

REPRESENTATIONS MADE BY ONE PARTY TO ANOTHER, THAT LAND WAS

LIABLE TO SALE UNDER EXECUTION, when in truth it was not, does not estop the former from asserting his legal title against the purchaser, although it might be otherwise in a court of equity.

LEGAL ESTOPPEL DOES NOT ONLY OPERATE BY WAY OF PROHIBITING him who has the legal title from asserting it, but also to pass the title to him in whose favor the estoppel works.

TENANT, AFTER HE HAS YIELDED UP POSSESSION, may assert title paramount to that of his former landlord, and his previous tenancy is no bar to his recovery.

AN action of ejectment to recover a lot of land in Butler county. Defendant claims under one Caldwell, who purchased said land at sheriff's sale, under an execution issued September 5, 1838, returnable on the first Monday in February, 1839, said sale having taken place on the ninth of February, 1839, and after the return day of the writ. Plaintiff was present at the sale and advised said Caldwell to buy, promised to redeem said land from him, and afterwards occupied it as his tenant. The remaining facts are stated in the opinion.

Stone and Judge, for the plaintiff in error.

Watts, for the defendant in error.

By Court, DARGAN, C. J. In the case of Morgan v. Ramsey, 15 Ala. 190, we held that a sheriff had no power to sell land under an execution, after the return day of the writ, and that a sale by him afterwards, unless his authority was revived by some new process, would not pass the title to the purchaser. We were forced to this conclusion by the decisions of this court previously made, and it must now be considered as the settled law: See Barton v. Lockhart, 2 Stew. & P. 109; Bobo v. Thompson, 3 Id. 385; Farmers' Bank of Chattahoochee v. Reid, 3 Ala. 299. As the sheriff sold the land after the return day of the execution, he acted without legal authority, and no title passed by his sale to the purchaser.

We also held in the case of McPherson v. Walters, 16 Ala. 714, that if one induced another to purchase land at sheriff's sale, representing that the land was liable to be sold under the execution, when in truth it was not, that the party was not estopped at law from asserting his legal title against the purchaser at sheriff's sale, although he might be in a court of equity. I have reflected on this decision since it was made, and am thoroughly satisfied it is correct, for the legal title to land must always prevail in an action of ejectment, and I can not conceive how the title to land can pass at law by fraudulent representations, or by acts or conduct in pais, without deed. As I understand a legal estoppel, it does not operate by way of prohibiting him who has the legal title from asserting it only, but operates by way of passing the title to him, in whose favor the estoppel works: Bean v. Welsh, 17 Id. 770, and cases therein cited. In an action at law, therefore, to prevent the plaintif

from recovering on the ground that he is estopped from asserting his title, the estoppel must be of such a character as will pass the legal title from the plaintiff and vest it in him who claims the benefit of the estoppel.

But it is supposed that the plaintiff is estopped, because after the sale of the land, he agreed with Caldwell, the purchaser, to rent it of him, and did occupy it afterwards as his tenant. It is true that one who rents land from another and receives possession of him can not set up title in himself, or a stranger, to defeat a recovery by the landlord. This principle is so familiar, that it needs no authority to support it. He may buy the title of his landlord, or, if the title be assigned or transferred to another during the lease, he may set this up in bar of the landlord's rights to recover; but so long as the title remains in the same condition, the tenant who receives possession from his landlord can not be permitted, whilst he retains that possession, to dispute the title under which he entered by setting up title in himself, or in a stranger. But no authority can be found which would forbid the tenant, after he had yielded up the possession, from asserting paramount title to that of the landlord. Indeed, all the authorities agree, that if one has the title to land but obtains the possession by contract of lease from another, although he can not dispute the title of him from whom he obtained possession, so long as the tenancy continues, yet after this is terminated, and he has restored the possession, he muy then assert his title paramount against his former landlord, and his previous tenancy can not bar him of his right to recover.

Applying these general principles to the record before us, they show that the court did not err, and the judgment must be affirmed.

SALE AFTER RETURN DAY OF WRIT VOID, and no title vests: See Freeman on Executions, sec. 106, and cases cited in note; see also other cases cited in same note, where the contrary doctrine is held.

FRAUDULENT REPRESENTATIONS TO THIRD PARTY CREATE ESTOPPEL, WHEN: See Wells v. Higgins, 13 Am. Dec. 235, and extensive note; Dezell v. Odell, 38 Id. 628, and note.

TO PASS ESTATE BY ESTOPPEL, the party must have power to pass it by a direct conveyance: Dugal v. Fryer, 22 Am. Dec. 458.

AFTER SURRENDER OF POSSESSION, TENANT MAY ASSERT SUPERIOR TITLE IN HIMSELF: Bank of Utica v. Mersereau, 49 Am. Dec, 189, and note.

THE PRINCIPAL CASE IS CITED to the point that an estoppel can only be invoked in equity, and does not create any higher legal estate in the party in whose favor it works than he at first had, in Bishop v. Blair, 36 Ala. 80; also, in Russell v. Erwin, 38 Id. 44, to the point that a tenant is estopped from denying his landlord's title without a surrender of the possession.

SPIVEY V. MORRIS.

[18 ALABAMA, 254.]

FORMER RECOVERY IN TROVER, UPON WHICH NO EXECUTION WAS ISSUED, AND WHICH HAS NOT BEEN SATISFIED, is no bar to a subsequent action for the same cause, against one who claims under the defendant in the former action.

AN action of trover. A recovery had been formerly had against one Oden, under whom the defendants claim, which re`covery is now relied upon as a bar to this action.

Rice and Morgan, for the plaintiff.

Woodward, for the defendant.

By Court, CHILTON, J. The question in this case is, whether a recovery in an action of trover by the plaintiff against one party, but without execution upon a satisfaction of the judgment, is a bar to an action of the same kind, brought by the plaintiff against a person claiming under the defendant to the former judgment. There is certainly most respectable authority on both sides of this question. That a judgment in trover for the value of the property amounts to an investiture of title in the defendant, is decided in Brown v. Wootton, Cro. Jac. 73; Adams v. Broughton, And. 18; S. C., Stra. 1078; Murrell v. Johnson, 1 Hen. & M. 450; Floyd v. Browne, 1 Rawle, 121 [18 Am. Dec. 602]; Marsh v. Pier, 4 Id. 285; and Foreman v. Neilson, 2 Rich. Eq. 287; and the law is similarly laid down by Mr. Chitty in his work on Pleading, p. 76, and in 3 Dane's Abr., c. 77, art. 1, sec. 2; see also Keyworth v. Hill, 5 Eng. Com. L. 422; 3 Stark. Ev. 1281; Wright v. Walker, 2 Hayw. 16. On the other hand, the following cases hold that there must be a satisfaction, in order to vest the title to the chattel in the defendant: Morton's Case, Cro. Eliz. 30; Ortertrout v. Roberts, 8 Cow. 43; Hepburn v. Seawell, 5 Har. & J. 211 [9 Am. Dec. 512]; Norris v. Beckley, 2 Rep. Cons. Ct. 228; Curtis v. Groat, 6 Johns. 168 [5 Am. Dec. 204]; Sanderson v. Caldwell, 2 Aik. 195; Hopkins v. Hersey, 20 Me. 449; and this view of the law is sustained by Sergeant Williams: Turner v. Davies, 2 Saund. 148 b; by Shep. Touch., title Gift; and by Chancellor Kent, 2 Com. 387. It seems, also, to be the doctrine of the civil and French law: Dig., lib. 6, 35, 63; Pothier, Traité Droit de Propriété, No. 364. See also Jones v. McNeil et al., 2 Bailey, 466, where it is said if the recovery in trover operates as a sale, it is by implication of law, and that implication can only arise from satisfaction of the value found. See to the same point, Drake v. Mitchell, 3 East, 251, per Lord Ellenborough, cited