Bradsher v. . Hightower

Faircloth, C. J.: Both parties excepted to the refusal of the court to submit issues tendered by them. These exceptions were properly overruled, as we see that the *404 issues submitted by the court were sufficient to admit evidence of their several contentions and to meet the merits-of the issues raised by the pleadings. There are uo questions of the rights of creditors in the case, nor any question of fraud or fraudulent misrepresentation, as the jury have-said by their response to the first issue that there was none. The whole matter then is limited to the dealings between the parties, treating Mary B. Johnston for the present as the defendant. The rights of the defendant Hightower (daughter and devisee of Mary B. Johnston) will be considered later. It was competent for the parties to make the deed absolute in form, but to be held as a security for the money loaned by the plaintiff, subject to be void upon payment of the debt and to be cancelled. The burden of showing this to have been the intention rested upon the party so-alleging. It was equally competent for the parties to have agreed that the deed should be absolute and irrevocable,, with a simultaneous agreement in writing that upon payment of the agreed price the plaintiff should convey and make title of the same land to the defendant, and the jury, in response to the second issue, find that the testatrix of the defendant did contract to purchase the land at the price of $210, and the plaintiff executed and delivered his bond for title accordingly, which appears in the record. The testatrix remained in possession until her death in 1880 or 1881, and the' defendant has been in possession ever since. On February 23, 1880, a small payment was made by the testatrix on the contract. This contract established the relation of vendor and vendee, similar in many respects to that of mortgagee and mortgagor. The possession of defendant’s testatrix was not hostile to the claim of the plaintiff and could not be an adverse possession, so as to put the Statute of Limitation in operation *405 without some act on the part of the vendee under a claim •of right, with intent to assert such claim against the vendor and thereby give him notice’that any further delay in the •■assertion of his right to possession or to foreclose the contract would be at his peril. The burden of showing such •a hostile attitude towards the vendor would devolve upon the party so alleging it. No proof of such possession or action was shown to exist on the part of the defendant or her testatrix. The Statute of Limitations does not expressly mention this trust relation between vendor and vendee, •and it could be only included under Section 158 of The •Gode, and we have held that it would then be allowed only where the possession was adverse, or where it was necessary to prevent some wrong or gross injustice. To obtain assistance from a court of equity the parties must observe the maxim that “ he who seeks equity must do equity ” — a principle based upon conscience and good faith. The defendant, as devisee of her mother, was in posses•sion before the deed was registered, and, so far as appears, before she had notice of the bond for title, and she claims to have the rights of a purchaser without notice. The difficulty in that position is that she is not a purchaser for ■value, and has no more rights than her mother had, which was an equitable estate without the legal title, whereas the plaintiff has the legal estate and the elder and stronger ■equity, because of a valuable consideration paid toiler testatrix. Inter partes,-deeds and contracts are binding without registration, and the defendant takes her moth>er’s equity subject to prior equities with or without notice, with the same right of redemption. A purchaser at a ■sheriff’s sale under a fi. fa. takes subject to all incum-brances on the property, whether he has notice or not, and whether he buys an equitable or legal estate, and this •defendant certainly can have no better claim. *406 There are instances in which this Court would interfere and protect the defendant. For instance, if the delay of á party to assert his claim should have been so long as to presume abandonment or any unfair dealing or gross injustice was present, the Court would see that the innocent party should not be disturbed. As nothing of the kind appears here, however, we will not interfere with the judgment below. Affirmed.