Harrison v. Sollie

The bill was to enforce a vendor's lien on lands. It is averred that on December 15, 1905, appellant and other joint owners sold their undivided interests in the land, described in the bill, to W. M. Willis, joining in a deed without condition, reciting a consideration of $3,000; that said grantee was to pay appellant (Sarah Harrison) $500 for her interest in the land, no security being taken for said amount of the purchase price, and that the same is due and unpaid; that in February, 1906, said Willis executed a mortgage, payable on October 1, 1907, conveying these lands to W. S. Oates for $1,000, on which has been paid $100 interest, which is alleged to have been usurious; that in September, 1907, *Page 285 appellant and others employed the husband of appellee to file a bill against said Willis to enforce their vendor's lien on the lands (the facts averred to be the same as set forth in the bill and dealt with in Sollie v. Outlaw, 204 Ala. 522,86 So. 380); that, pending such litigation, on October 23, 1907, said mortgage was foreclosed with a knowledge that appellant had not been paid the purchase money for her interest in said lands; appellee purchased the land at said foreclosure sale, and, as such purchaser claimed title to the land, entered into possession thereof under her deed from mortgagee Oates and the auctioneer who conducted the foreclosure sale. The purchaser at such foreclosure sale claims (1) to be "an innocent purchaser for value, without notice" of appellant's said equity; and (2) that she has had adverse possession of the land for 10 years, defeating appellant's claim. In the final decree the first contention was decided by the trial court adversely to appellee, yet the defense of adverse possession for 10 years prior to the filing of the bill was decreed to have been proven, and was a defense or bar to complainant's recovery. The bill was dismissed, and complainant taxed with the costs incurred in that behalf. A vendor of land may retain a lien for purchase money on its sale unless it is expressly or impliedly waived. Jacobs v. Goodwater Graphite Co., 87 So. 363;1 Kinney v. Ensminger,94 Ala. 536, 538, 10 So. 143; Hammett v. Stricklin, 99 Ala. 616,13 So. 573; Gravlee v. Lamkin, 120 Ala. 210, 24 So. 756; Acree v. Stone, 142 Ala. 156, 37 So. 934; Campbell v. Goldthwaite, 189 Ala. 1, 66 So. 483; Russell v. Stockton,199 Ala. 48, 74 So. 225; Foster v. Trustees of Athenaeum,3 Ala. 302; Dowling v. McCall, 124 Ala. 633, 26 So. 959; Turner v. Turner, 193 Ala. 424, 69 So. 503. The equitable remedy to enforce a vendor's lien is not "stale" until the expiration of 20 years after the purchase money becomes due and payable. Shorter v. Frazer, 64 Ala. 74,80; Leek v. Meeks, 199 Ala. 89, 95, 96, 74 So. 31; Tayloe v. Dugger, 66 Ala. 444; Ware v. Curry, 67 Ala. 274; Beall v. Folmar, 199 Ala. 596, 75 So. 172; Salvo v. Coursey,87 So. 519.2 However, the statute of limitations of 10 years may bar a suit at law for the recovery of a debt, if it be incurred in the purchase of properties on which there is a vendor's lien; but it has no application to a bill for the enforcement of the lien between the original parties. Hood v. Hammond,128 Ala. 569, 30 So. 540, 86 Am. St. Rep. 159; Reynolds v. Lawrence, 147 Ala. 216, 40 So. 576, 119 Am. St. Rep. 78; Phillips v. Adams, 78 Ala. 225. The general rule — subject to yield when sufficient circumstances appear to the contrary — that the possession of land by a vendee holding under an executory written contract for the purchase of land is not adverse as to his vendor, is not applicable to the instant facts. Rankin v. Dean, 157 Ala. 490,47 So. 1015; Perry v. Lawson, 112 Ala. 480, 20 So. 611; Woodstock Iron Co. v. Roberts, 87 Ala. 436, 6 So. 349; Beard v. Ryan, 78 Ala. 37, infra; Walker v. Crawford, 70 Ala. 567, infra; Casey v. Morgan, 67 Ala. 441; Potts v. Coleman,67 Ala. 221; Tayloe v. Dugger, supra; Collins v. Johnson, 57 Ala. 304; Miller v. State, 38 Ala. 600; Seabury v. Doe, ex dem. Stewart Easton, 22 Ala. 207, 58 Am. Dec. 254. The reason for the foregoing rule is that the vendee, though "not strictly a tenant of the vendor, and though the technical relation of landlord and tenant is not created, is estopped from denying the title of the vendor, upon principle and reasoning like that which estops the tenant from disputing the title of the landlord." Potts v. Coleman, supra; Mizamore v. Berglin,197 Ala. 111, 72 So. 347, L.R.A. 1916F, 1024; Sellers v. Hayes, 17 Ala. 749. This decision turns upon the question of adverse possession of said lands for 10 years, not by the original vendee Willis, but by a third party who had purchased at the foreclosure sale of the mortgage by Willis to Oates — by the grantee named in the auctioneer's or mortgagee's deed. To such third party purchaser the statute of adverse possession for 10 years was available. Beall v. Folmar, supra; Walker v. Crawford, 70 Ala. 567; Perry v. Lawson, supra; Beard v. Ryan, 78 Ala. 37. And on this phase of the case the question of fact was ascertained by the decree of the circuit court in equity adverse to appellant, and is well supported by the evidence. The decree of the circuit court in equity being in consonance with the latter rule, to which we have adverted, is affirmed. Affirmed. ANDERSON, C. J., and McCLELLAN and SOMERVILLE, JJ., concur. 1 205 Ala. 112. 2 205 Ala. 280. On Rehearing.