McQueen v. Ivey , 36 Ala. 308 ( 1860 )

R. W. WALKER, J.

Where a party enters into the possession of land under a vendor’s bond, conditioned to make titles when the purchase-money is paid, his possession, so long as the purchase-money remains unpaid, is held to be in subordination to the title of the vendor ; and in an action by the latter for the recovery of the land, the vendee cannot claim the protection of the statute of limitations, on the ground of adverse possession under color of title. The very instrument under which the party enters and holds, shows upon its face that he cannot claim the land as his until he has paid the purchase-money. — Seabury v. Stewart & Easton, 22 Ala. 207; Bank v. Smyers, 2 Strob. Law, 28 ; Benson v. Stewart, 30 Miss. 57; Paxson v. Bailey, 17 Geo. 600; Jackson v. Camp, 1 Cowen, 605; Secrest v. McKennan, 6 Rich. Eq. 72: Woods v. Dille, 11 Ohio, 453; Stamper v. Griffin, 20 Geo. 321.

But, when the vendee has complied with the terms of the contract on his part, by paying the purchase-money, such a bond is color of title; and if he thereafter remain in 'possession, claiming the land as his own, for the peripd prescribed by the statute of limitations, the legal title will be barred. — Jackson v. Foster, 12 Johns. 490; La Frombois v. Jackson, 8 Cowen, 597; Briggs v. Prosser, 14 Wend. 227; Fosgate v. Herkimer Co., 12 Barb. 352; Bank v. Smyers, 2 Strob. Law, 28 ; Ellison v. Catheart, 1 McMull. 7; Brown v. King, 5 Metc. 173; Barton v. Morris, 15 Ohio, 408; Drew v. Towle, 10 Foster, 531; Stamper v. Griffin, 12 Geo. 458; Benson v. Stewart, 30 Miss. 58 ; Lander v. Ronnsaville, 12 Texas, 195; Angell on Lim. §§405-6.

Sellers & Cook v. Hayes, 17 Ala. 749, is not in conflict with the doctrine last stated. In that case, the court did hold, that the possession of the vendee, under a bond for titles, will not prevent the lien of a judgment, rendered against the vendor during the continuance of such pos-, session, frotn attaching to the land ; and this wassoheld, although it was shown that the vendee in that case had paid the purchase-money at the time of the purchase. Whether this fact was allowed its due weight, we do not now inquire. On examining the opinion of the court, it will be seen, that it is placed upon an assumed distinction, between an adverse possession that will give title under the statute of limitations, and such adverse possession as will enable the tenant to set up title in himself or another, or would prevent him who had the title from transferring it; and it is expressly said, that if no suit had been brought against the vendee, or those claiming under him, until twenty years from the time he took possession, the statute of limitations would have protected him from a recovery. — See page 752. This case is, therefore, not an authority against the rule we have laid down above.

It results, that there was no error in the charge of the court.

Judgment affirmed.