Benson v. Stewart

Haitby, C. J. The facts necessary to be taken into view, in considering this ease, are substantially as follows:— The appellees filed their bill in the District Chancery Court, at Holly Springs, on the 27th September, 1850, to foreclose a mortgage executed by one Niles in the year 1836, to secure the payment of a promissory note, due 1st December, 1839, and conveying a tract of land lying in Pototoc county, which mortgage was duly registered. This bill was filed against Niles, the mortgagor, and afterwards, on the 10th January, 1853, an amended bill was filed making the appellant a party and calling upon him to disclose the nature of his claim upon the land. He answered, setting up a title to the entire tract, under a deed to him from one dagger, dated 10th November, 1847, who had purchased it at a tax collector’s sale. He further states, that in August, 1845, he purchased from Niles, the mortgagor, the south half of the section in controversy, gave Niles his notes for the purchase-money, and took a bond for title from him, and immediately went into possession, and has so continued; and that he afterwards paid Niles the purchase-money, and on 24th September, 1849, Niles executed the conveyance under which he claims. He further states, that about the month of August, 1845, one Rogers contracted with Niles to purchase the north half of the section, gave his notes for the purchase-money, received a bond for title, and went into possession, which contract was rescinded by Niles and Rogers, in October, 1850; and thereupon, that the appellant purchased that part of the land from Niles, received a deed, and took and still holds possession. He claims to hold the entire tract as a purchase for a valuable consideration, without notice of complainants’ claim, relies upon his adverse possession of seven years before the filing of the amended bill against him, and pleads the Statute of Limitations as a bar to the-enforcement of the mortgage. It is admitted that the deeds mentioned in the answer were executed at the times stated, that Den-son took possession of the south half of the section in September, [57] 1845, and that be paid tbe purcbase-money to Niles; but it does not appear at wbat times tbe payments were made. 'Tbe vice chancellor decreed a foreclosure of tbe mortgage, and from that decree tbis appeal is taken. Tbe first point raised in bebalf of tbe appellant wbicb we will consider is, whether tbe enforcement of tbe mortgage is barred by tbe Statute of Limitations. It appears that tbe note secured by tbe mortgage became due on tbe first day of December, 1839, and of course tbe right of foreclosure accrued at that time. The bill was filed in September, 1850, and tbis is less than twenty years after tbe forfeiture, if tbe case were governed by tbe rule wbicb existed before tbe passage of tbe statute of 1844. But tbe rule of limitation applicable to it, is that fixed by tbe act of 1844, and tbe period of limitation that would bar tbe right of foreclosure, would be that which bars tbe right of entry, or an action for tbe recovery of possession of tbe lands fixed by that act, and wbicb is seven years. And in tbis case tbe bill was filed against tbe mortgagor before tbe lapse of seven years from and after tbe passage of tbe act of 1844. Tbis was a sufficient assertion of tbe mortgagee’s right to prevent tbe mortgage from being barred by tbe statute, though tbe amended bill by wbicb tbe appellant was made a party was not filed until after tbe lapse of seven years after tbe passage of tbe statute. Tbe next question which we will notice is, whether tbe appellant is entitled to tbe protection of tbe Statute of Limitations with respect to that part of tbe land alleged to have been sold to Rogers. There cannot be any doubt upon tbis point. If Rogers bad gone into possession and paid tbe purcbase-money, or received a deed, and bad subsequently conveyed the premises to Benson, and tbe time embraced by both possessions bad amounted to tbe period prescribed by tbe statute as a bar, it would have been competent to join tbe one adverse possession to tbe other, in order to make tbe bar effectual. For it is immaterial whether tbe possession be held for tbe entire period by one party, or by several parties in succession, each bolding part of tbe time, and all together bolding tbe entire period, provided the possession be continued and uninterrupted, and adverse to tbe claim of tbe plaintiff, during tbe [58] whole period. But this rule cannot apply here, because Rogers, before the lapse of the period of limitation, surrendered the land to Niles, who thereupon sold it to Benson; after which time his individual possession was not for a sufficient length of time to constitute the statutory bar. When the contract of purchase between Niles and Rogers was rescinded, the land was in Niles’s possession, in the same way in which he held it previous to the contract with Benson, and subject to the mortgage of complainants. He could not be said to hold it adversely to the mortgage, and consequently there was an interruption of the adverse possession; and, as Benson derived his title from Niles, the commencement of his adverse possession would be the date of his purchase from Niles, and he would be placed in the position in which Niles stood when he conveyed to him. Consequently there was no such adverse possession as would bar the complainants’ claim. The only remaining question is, whether the appellant has had such adverse possession of the south half of the section of land, as will bar the complainants. Taking the statements of the answer to be true, the appellant purchased this part of the land from Niles in August, 1845, and executed his notes for the purchase-money, received a bond for title, and took possession. He does not claim that he paid the purchase-money at the date of the purchase, nor does it appear at what time it was paid. If there had been a deed of conveyance, with delivery of possession at the time, or, if the purchase-money had been paid, and a valid agreement for a conveyance made, accompanied by delivery of possession, the appellant would have been entitled to protection on the ground of adverse possession, under color of title. But if the purchase-money is not paid, the possession is not adverse, but is held to be in subordination to the title of the vendor, until the money is paid. It is said to be a case of “ mutual understanding, and mutual confidence between the parties, so that the purchaser could not be considered as holding a possession adverse to the title which he acknowledged.” Kirk v. Smith, 9 Wheat. 251; Brown v. Kiny, 5 Met. 173; Jackson v. Hotchkiss, 6 Cow. 401; Prop. No. Six v. McFarland, 12 Mass. 325. [59] The possession of the appellant was, therefore, not adverse to Niles, nor could it be adverse to the mortgagees, because he occupied the same position towards them which Niles occupied, and could not, under the circumstances under which he held the land, claim the benefit of an adverse possession against the mortgagees. His adverse possession cannot be said to commence until he received a deed of conveyance, or paid the purchase-money. The deed was executed about four years before the filing of the amended bill, and of course that does not show a sufficient time to constitute a bar. The time at which the purchase-money was paid does not appear, and therefore we could not hold that it was paid a sufficient time before the filing of the amended bill to give effect to the bar, by creating an adverse possession. We are, therefore, brought to the conclusion, that there is not such an adverse possession in the appellant shown, as will bar the complainant’s claim. With regard to the appellant’s defence, as a bond fide purchaser without notice, it is sufficient to remark, that he had notice in law of the mortgage by its registration, and cannot claim protection as a purchaser without notice. We consider the decree correct, and it is therefore affirmed.