L. Grunewald Co. v. Copeland , 131 Ala. 345 ( 1901 )

SHARPE, J.

As applied to suits for personal property adversely held, the statute of limitations does not affect the remedy merely, as in suits for1 debts, but it acts on the title, operating to transfer it to the possessor. •Jones v. Jones, 18 Ala. 248. Therefore, the possessor may establish his rights obtained through the statute, under any issue which comprehends the fact of ownership without pleading the statute specially. The special issue setting up the statute of limitations in this case was covered by the issue made on claimant’s assertion of ownership, and might well have been dispensed with. But in no way could the presence in the record of the special issue have been prejudicial to the plaintiff, and, therefore, the overruling of the demurrer to, and motion to strike that issue, is not cause for reversing the judgment. 1

By the statute which provides in detinue, for discharging the property from debts of mortgagees and conditional vendors, the statute of limitations is excepted from the defenses which may be made to defeat such debts. — Code, § 1478. The statute, however, neither purports nor intends to prevent the operation of the statute upon the title to the property nor to affect the possessor’s right to defend the title he may have acquired by holding for the period which bars adverse claims.

The statute of limitations runs only where there is an adverse holding. The possession of one obtained by consent of another who is the owner, becomes adverse only when it becomes antagonistic to the owner’s rights. Lucas v. Daniel, 34. Ala. 188. That condition may arise when the possessor converts the property as by disposing of it unlawfully. — Angel Lim., 325. It has been held that a conditional vendee’s holding becomes adverse by continuing after default in paying instalments of price where such default gave the vendor right to retake possession. — Barton v. Dickens, 48 Penn. St. 518.

In the present case the piano sued for was sold upon condition Avhich left in the plaintiff’s tranferor title, together Avitli the right to retake the property on default in payment of any'ins talment of pr ice. Not only dli d such default occur, but the vendee of his own accord mortgaged the property to a third person who thereafter in foreclosing advertised, sold and bought it. The evi-. deuce shoAvs that ever since the foreclosure sale which AAras more than six years before this suit wa.s brought the property has been in the possession, first of the purchaser at the foreclosure sale, and thereafter successively of those claiming under or through him including lastly the claimant, without any fraudulent concealment on their part so far as appears. This evidence was relevant to shoAV and had the effect of showing that at least from the time the mortgagee took possession under his purchase the property has been held adversely to the plaintiff’s claims and tbat its ownensbip lias vested in tlie claimant.

Judgment affirmed.