Tillar v. Clayton , 76 Ark. 405 ( 1905 )

McCurroch, J.

The conclusion of the chancellor was erroneous, and finds no support in the record. The evidence is undisputed that C. C. Clayton took possession of the land unde'r his verbal purchase from Tillar & Stanley, and neither he nor his heirs can dispute the title, while the .purchase money remains unpaid. Johnson v. Douglass, 60 Ark. 39.

The burden is upon the appellees to prove payment of the purchase price, and they introduced no proof at all tending to establish payment. On the contrary, the undisputed testimony of both Stanley and Tillar shows that nothing was ever paid on the purchase price.

The statute of limitations does not run against a vendor in favor of a vendee holding under a contract for sale and purchase; nor does it run where the original possession of the holder seeking to plead the statute was in privity with the rightful owner, until there be “an open and explicit disavowal and disclaimer of holding under that title and assertion of title brought home to the other party.” Williams v. Young, 71 Ark. 164; Whittington v. Flint, 43 Ark. 504; Ringo v. Woodruff, 43 Ark. 495; Coleman v. Hill, 44 Ark. 452; Duke v. State, 56 Ark. 485.

It being shown that the original possession of Clayton was subordinate to the rights of his vendor, the law presumes that it continued in subordination thereto untill some hostile act is shown, and that notice thereof was brought home to the vendor. No act of hostility is shown in this case either by C. C. Clayton or his heirs after his death, and the plea of adverse possession is not sustained by the proof.

Counsel for appellees contend that appellant is not entitled to the relief sought for the additional reason that he failed to tender a deed with his complaint. This would have been a good defense if it had been pleaded; but appellees failed to plead the omission, and based their defense on other grounds inconsistent with that plea. It is too late now for them to object here for the first time that no deed was tendered.

Computing interest upon the purchase price agreed upon in the original sale to C. C. Clayton from the date of that sale would make that amount to more than the notes executed by L. A. Clayton; but appellant elected to sell to T. A. Clayton for the reduced amount, and that reduction inures to the benefit of the other heirs of C. C. Clayton. Appellant asks for a foreclosure for the amount of the L. A. Clayton notes and interest, and he is entitled to decree therefor, but must execute and tender in court a deed in proper form conveying the land to appellees as widow and heirs of C. C. Clayton according to their respective rights as such.

The decree is therefor reversed, and the cause remanded, with directions to enter a decree of foreclosure in favor of appellant in accordance with this opinion.

Battle:, J., absent.