Mrs. Sollie holds under an auctioneer's deed of date October 29, 1907, made to her as purchaser at foreclosure sale of the Oates mortgage, and went into immediate possession of the lands as such purchaser. This bill was filed March 18, 1919.
A general statement of rules pertaining to real property is that a person is said to have color of title to lands when he has an apparent, though not a real, title to the same, founded upon a deed or writing which purports to convey the lands, and under which he bona fide claims the real property made the subject of the deed; that possession under color of title for the period of statutory limitation confers upon the holder a perfect title in law, and that such possession may be transferred to subsequent parties, and the possession of the different holders may be united or tacked so as to make up the statutory period. 1 Warvelle on Vendors (2d Ed.) § 50. The doctrine of adverse possession rests upon the acquiescence, express or implied, of the parties immediately affected by such possession. Hence, when possession is acquired in subordination to the title of the true owner, to constitute the continued possession adverse there must be a disclaimer of the title of him from whom the possession was acquired — "an actual hostile possession of which he has notice, or which is so open and notorious as to raise a presumption of notice" (Dothard v. Denson, 72 Ala. 541, 545); and neither the claim of the real title in good faith nor color of title is essential, the actual possession in such case being equivalent to notice (Gerald v. Hayes, 205 Ala. 105, 87 So. 351).
The general rule (2 Tiffany, Real Prop. [2d Ed.] § 513[f]) is that, as between the original vendor and vendee, the possession of the vendee of the land under an executory contract of sale is presumed to be in subordination to the rights of his vendor so long as the purchase price has not been paid or the contract unperformed on his part (E. T., V. G. R. R. Co. v. Davis,91 Ala. 615, 8 So. 349; Sample v. Reeder, 107 Ala. 227, 231,232, 18 So. 214); and when so performed, or tender of full performance made, by the vendee his possession becomes adverse to the *Page 287 vendor (Woods v. Montevallo, etc., Co., 84 Ala. 560, 3 So. 475, 5 Am. St. Rep. 393; Potts v. Coleman, 67 Ala. 221; Tayloe v. Dugger, 66 Ala. 444; Jernigan v. Flowers, 94 Ala. 508,10 So. 437; Perry v. Lawson, 112 Ala. 480, 20 So. 611; T. C. I. Co. v. Linn, 123 Ala. 112, 26 So. 245, 82 Am. St. Rep. 108; Cannon v. Prude, 181 Ala. 629, 62 So. 24; Ala. State Land Co. v. Matthews, 168 Ala. 200, 53 So. 174; McQueen v. Ivey, 36 Ala. 308; Beard v. Ryan, 78 Ala. 37; 1 A.L.R. 1330, 1337, 1340, 1344, 1345); or when a deed has been executed (Perry v. Lawson, supra) "the mere fact that a purchaser from the original vendee has made full payment to the latter suffices in itself to make such purchaser's possession adverse to the original vendor" (Tayloe v. Dugger, supra; Beard v. Ryan, supra). In Beall v. Folmar, 199 Ala. 596, 75 So. 172, the cases of Tayloe v. Dugger and Beard v. Ryan were recognized as authorities, the facts stating that both these cases turned "upon the question of adverse possession, as that condition was affected by the inquiry whether the claim was or could be hostile to the vendor." In Perry v. Lawson, supra, it is said:
"Where a party holds under an executory contract of purchase, his possession does not become adverse to his vendor, in the absence of a clear repudiation of his allegiance, brought home to the vendor, until he becomes entitled to a conveyance, by paying the purchase money, or otherwise complying with the conditions of the purchase. This rule, however, does not apply where a conveyance has been executed, under which, and not under the executory contract, the vendee continues to hold and claim the lands. This is true, although the purchase money, for which a vendor's lien would exist, has not been paid."
Such was the announcement where the possession taken was under a deed executed by a married woman without joining her husband; the holding being that such deed served as color of title and turned into adverse holding that which was or had been a recognition of the adversary's title. Southern Ry. v. Cleveland, 169 Ala. 22, 53 So. 767.
This court has said of possession of a subpurchaser from a mortgagor that he holds the land adversely as against the purchaser at foreclosure sale, since on foreclosure the mortgage becomes functus officio; that a purchaser from mortgagor holds possession adversely to the mortgagee or purchaser at foreclosure sale, though the latter be the original mortgagee. Garren v. Fields, 131 Ala. 304, 30 So. 775. The possession of one who takes a deed from a vendee is deemed adverse to the vendor. Woodstock Iron Co. v. Roberts,87 Ala. 436, 6 So. 349 (ejectment, where possession was held under an administrator's sale though decedent had not paid the purchase money); Beard v. Ryan, 78 Ala. 37, 41, 42 (ejectment — the case of a subpurchaser or third party); Walker v. Crawford, 70 Ala. 567 (in equity, for enforcement of vendor's lien and defeated on plea of adverse possession of a subpurchaser or third party); State v. Conner, 69 Ala. 212 (ejectment by subpurchaser from a purchaser under executory contract of purchase); Tayloe v. Dugger, 66 Ala. 444 (ejectment, where the purchase money was paid by purchaser under executory contract); Miller v. State, 38 Ala. 600 (ejectment, by subpurchaser holding under sheriff's deed).
Though the instant case appears to be one of first impression, on principle or reason it is not to be differentiated from the holding in foregoing authorities last cited; and especially from Walker v. Crawford, supra, where the bill in equity was by a vendor to subject lands to payment of purchase money, and was defeated under the plea of adverse possession. The fact that such purchaser was let into possession under an executory contract, and, not having paid the purchase money, and not having received a conveyance, he held in subordination to the title of the vendor, and that, where he sells and conveys to a third person, who pays the stipulated price, is let into possession and receives a conveyance of the title in fee simple, such subpurchaser may hold adversely to the original vendor, and may acquire a title under such adverse possession, is, in my judgment, decisive of the instant case, and justifies the conclusion stated in my original opinion. The fact that there are two absolute conveyances between the enforcement of the equity of complainants and the possession of Mrs. Sollie strengthened, rather than weakened, her possession — made a stronger case than that of the foregoing subpurchaser under executory contract to convey.
I wish to conclude by a reference to State v. Conner, supra, wherein Judge Stone makes the distinction between the defense of bona fide purchase without notice and that of adverse possession. I think his words may be applied with great force to the facts of the instant case:
"One who acquires possession under a conveyance from an executory purchaser takes it under title simply colorable, and, in fact, acquires no title whatever. Such holding, not being in subordination to the true title, but in disregard of it, we have held that it is independent and adverse; and if permitted to continue 10 years, it ripens into a title which will defeat or maintain an action of ejectment. * * *
"It is very true, if Mrs. Conner's defense rested on that ground, she has entirely failed to make it good. To maintain such defense, the purchaser must not only show a conveyance to himself, but he must go farther and prove that his grantor was seized of a legal title, superior to that shown by plaintiff. And he is charged with notice of every defect, which an examination of his vendor's chain of title would disclose. If, as is claimed in this case, title never passed out of the state to White, the first purchaser, an examination of Whitsett's *Page 288 chain of title would have disclosed the absence of this first, and most important link in the chain. This would have invalidated her title, and would have been fatal to her plea of bona fide purchase. Bradford v. Harper, 25 Ala. 337; 2 Brick. Dig. 520, § 184; Coyle v. Wilkins, supra, 57 Ala. 108. But the defense does not rest on a bona fide purchase without notice. If it did, and were made out, the defendant would not require the aid of the statute of limitations. That defense does not depend nor rely on original sufficiency of title. It relies on no documentary title whatever, and impliedly concedes that the possession had its inception not in right, but in wrong. The gist of it is, that the defendant and those under whom he claims, have held continuous adverse, or independent possession for ten years next before the suit was brought. Collins v. Johnson, 57 Ala. 304." 69 Ala. 217, 218.