Harrison v. Sollie

• Decision Date: 10 February 1921
• Docket Number: 4 Div. 898
• Citation: 89 So. 562,206 Ala. 284
• Parties: HARRISON v. SOLLIE et al.
• Court: Alabama Supreme Court

89 So. 562

206 Ala. 284

HARRISON v. SOLLIE et al.

4 Div. 898

Supreme Court of Alabama

February 10, 1921

On Rehearing May 5, 1921

Rehearing Denied June 30, 1921

Thomas J., dissenting.

Appeal from Circuit Court, Henry County; H.A. Pearce, Judge.

Bill by Sarah A. Harrison against Mrs. A.E. Sollie and others. Decree for respondents, and complainant appeals. Reversed, rendered and remanded.

O.S Lewis, of Dothan, for appellant.

H.L Martin, of Ozark, Farmer, Merrill & Farmer, of Dothan, W.O Mulkey, of Geneva, W.W. Sanders, of Elba, and Sollie & Sollie, of Ozark, for appellees.

THOMAS, J.

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, 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; 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. 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.

On Rehearing.

SOMERVILLE J.

The adverse possession of land means a disseizin of the owner of the legal title.

"If there be no other person entitled to present possession, there can be no repugnancy, actual or constructive, between the mere possession of the occupant and the rights of any one else. A possession, to be adverse, must, in other words, operate to disseize, or oust, some other claimant of his possession or right of possession. *** Hence, an adverse possession has been defined to be, an occupancy 'which disclaims the title of the negligent owner.' *** We are unable to conceive of an adverse possession which is not exclusive of the rightful owner, or does not operate to encroach upon his right of possession so as to oust or disseize him." Pickett v. Pope, 74 Ala. 122, 131.

An understanding of the essential nature and operation of adverse possession makes perfectly clear the impossibility of the extinction of the equitable lien of a vendor of land as a result of the exclusive possession of his vendee under an executed conveyance of the legal title. In such a case the vendor has neither possession nor right of possession. He cannot be disseized, because he has no right of seizin. There is, in short, no objective upon which an adverse possession can operate to any legal effect, so far as the vendor is concerned; nor is the situation in any wise different when the land has passed to a subvendee, even though he has paid the purchase price to his immediate vendor, unless he is a purchaser without notice of the existing lien.

Upon the foregoing principles, the bill of complaint exhibits an unpaid vendor's lien which could not be defeated by any lapse of time short of 20 years after the debt fell due. Beall v. Folmar, 199 Ala. 596, 75 So. 172, and cases therein cited. And, as the evidence supports the allegations of the bill, and affirmatively shows that the respondent, and also her immediate vendor, Oates, had notice of the existence of the lien, the complainant was entitled to the relief prayed, and the trial court erred in dismissing the bill. We find no decision of this court which in any wise conflicts with our conclusion.

The cases relied on by appellee, and cited as authorities in the opinion of Mr. Justice Thomas, all deal with executory contracts of sale in which the legal title remained in the vendor. In such cases the vendee, or a subvendee, may, of course, claim and hold adversely to the legal title of the vendor, and by such claim and holding may effectually disseize him, and after 10 years extinguish his title. It is to be observed that the only difference between the status of an immediate vendee and a remote vendee in executory sales is that an immediate vendee, who has not paid the purchase money, is presumed to hold in subordination to the title of his vendor; while a remote vendee, under an executed conveyance, who has paid the purchase money to his immediate vendor, is presumed to hold adversely to the title of the original vendor. Tayloe v. Dugger, 66 Ala. 444; Walker v. Crawford, 70 Ala. 567. But, if the possession actually becomes adverse to the title of the original vendor, by appropriate assertion and conduct, it will be as effective in the one case as in the other.

In the case of Perry v. Lawson, 112 Ala. 480, 20 So. 611, there was an executory contract of sale by a married woman, followed by her execution of a deed which was utterly void for want of her husband's joinder. It was properly held that the purchaser could hold adversely to the vendor, and that his acceptance of the deed, which was color of title, was notice to her of the change in the character of his possession from subordination to hostility. Perry v. Lawson has no bearing on this case.

The application for rehearing will be granted, the judgment of affirmance will be set...