Relfe v. Relfe , 34 Ala. 500 ( 1859 )

A. J. WALKER, C. J.

We approve, and are content to abide by, the decision in Driver v. Hudspeth, 16 Ala. 348, that the lien of a vendor, who has made an executory contract for the sale of land, is not destroyed, because an actiou to recover the purchase-money is barred by the statute of limitations. The principle which preserves liens, notwithstanding the bar of the debt, is neither confined to those secured by a conveyance, as for example a mortgage, nor to those secured by a sealed instrument, nor even to those provided by an express contract. Thus the lien of a pawnee, of an attorney, or of an acceptor having a collateral security, survives the bar of the debt by the statute of limitations. — Aug. on Lira. § 73; Morse v. Williams, 3 Camp. 418. The principle is, that the statute of limitations does not extinguish the debt, but merely bars the remedy by action at law; and there is no inconsistency in the prosecution of another remedy after the action at law is barred. — Higgins v. Scott, 2 B. & A. 413.

The decisions in New York and Mississippi, cited for the appellee, take a different view of the question; and one of them refers the preservation of a mortgagee’s lien, after an action is barred, to the-fact that the mortgage is under seal, and therefore its enforcement is governed by a different statute of limitations; and the other, that the mortgage is separate and distinct from the debt, and a more solemn acknowledgment of and security for the debt, while the vendor’s lien is a mere incident to the debt inferred by the law. These decisions are not, in our judgment, correct expositions of the law. The lien of a vendor and a mortgage are alike — in the same sense, and to the same extent — incidents of the debt. They are alike transferred by an assignment of the debt, and neither can survive the extinguishment of it; and the vendor and mortgagee alike have independent remedies, by taking possession, and by proceeding in chancery for a sale to pay the debt. The decision of this court is supported as well by authorities as by principle. — Hopkins v. Cockrell, 2 Grat. 86; Reed v. Minell, 30 Ala. 61; Cross on the Law of Lien, 13, (34 Law Library); ib. 355; Spears v. Pently, 3 Esp. 81; 2 Parsons on Con. 379; Bradford v. Spyker’s Adm’r, 32 Ala. 134; Morton v. Harrison, 1 Bland, 491; 1 Hilliard on Mortgages, 656 ; also, authorities upon brief of appellant’s counsel.

[2.] So far as tbe question of staleness, as well as most other questions, is concerned, the vendor of land stands precisely as a mortgagee. We have decided, after careful consideration, that the possession of the mortgagor is not adverse to the mortgagee; and that the mortgagor can not invoke the analogy of the statute of limitations, in the absence of a holding positively hostile to the mortgagee, to defeat a hill to foreclose. — Bird v. McDaniel, 33 Ala. 18. We must adopt the same principle in reference to a vendor’s bill to enforce his lien. 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 lapse of time. It would be like making lapse of time the origin of title in the tenant against his landlord. The law is well settled, that the only doctrine available to the mortgagor, who holds in subordination of the mortgage, is the presumption of payment after the lapse of twenty years. — Angell on Lim. §§ 452-53; 1 Hilliard on Mort. 473; 2 ib. 505, chap. 26 ; Christopher v. Spark, 2 Jac. & W. 233; 1 Powell on Mort. 396 a, and 397, ánd note.

We conclude, that none of the objections made in the argument of counsel to the equity of the bill are maintainable ; and we direct that the chancellor’s decree be reversed, and the cause remanded.

StoNE, J., not sitting.