Watt v. Killebrew

DENSON, J. At the fall term, 1894, of the circuit court held for Geneva county, the state of Alabama recovered judgment against John J. Fowler. Execution [455] was issued on the jugdment and levied by the sheriff in the autumn of 1894 on the lands in controversy as the lands of John J. Fowler. The lands were regularly advertised and sold under said levy on the 4th day of March, 1895, by the sheriff. At the sale the plaintiff in this action became the purchaser, and on the day of the sale she received a deed as such purchaser to the lands from the sheriff. The proof showed without conflict that from some time in 1891 up to the 26th day of January, 1895, John J. Fowler was in the actual possession of the land as owner; that on that day he sold and conveyed it to John Brandon; that the next day after the deed ivas made Brandon entered into possession of the land, and remained in the actual adverse possession of it until he conveyed it to one Murdoch by warranty deed regularly executed; that Murdoch, immediately on the execution of said deed, entered into the actual adverse possession of the land, and so remained in possession until the 10th day of September, 1904, when by warranty deed properly executed he conveyed the land to the defendant, who at once entered into the" actual adverse possession of the land, and so remained in possession continuously up to and including the time of the trial. The suit was commenced by the plaintiff on the 3d day of March, 1905. On the facts stated, the court, at the written request of the defendant, gave the general affirmative charge, with hypothesis, in his favor. It is insisted by the appellant that the charge should not have been given, because as she contends, the statute of limitations could not begin to run against her until she received her deed from the sheriff on the 4th day of March, 1895. In Barclay v. Smith, 66 Ala. 230, this identical question was before this court, and was decided adversely to the appellant’s contention; it being there held that the statute begins to run from the time [456] the execution debtor delivers his deed to the purchaser from him. On the authority of that cace we hold the affirmative charge, as requested, was property given. The cases of Brunson v. Morgan, 86 Ala. 318, 5 South. 495, and Sellers v. Farmer, 151 Ala. 487, 43 South. 967, which hold that the possession of the debtor is not adverse to that of the purchaser at an execution sale, so as to affect a conveyance made by the purchaser while the debtor is in possession, are not in conflict with the Barclay v. Smith, nor with what is decided on the present appeal. Let the judgment of the circuit court be affirmed. Affirmed. Tyson, C. J., and Simpson and McClellan, JJ., concur.