This is an appeal from a decree sustaining a demurrer to a bill in equity. The *Page 495 equity of the bill is to enforce an equity of redemption in what may be termed a resulting trust to secure the payment of a debt for borrowed money, which in equity is treated as a mortgage. Pollak v. Millsap, 219 Ala. 273, 122 So. 16 (7), 65 A.L.R. 110; Moss v. Winston, 218 Ala. 364, 118 So. 739; O'Rear v. O'Rear, 219 Ala. 419, 122 So. 645; Gunter v. Jones, 244 Ala. 251, 13 So.2d 51; O'Rear v. O'Rear, 220 Ala. 85, 123 So. 895; Leonard v. Duncan, 245 Ala. 320, 16 So.2d 879.
The ground of demurrer, which was evidently thought to be good, was one which goes to the statute of limitations. It is well understood that in a suit of this kind, the statute of limitations is ten years as in the nature of a suit for the recovery of land since land is the subject matter of the suit. Miles v. Rhodes, 222 Ala. 208, 131 So. 633; McCoy v. Gentry,73 Ala. 105.
The rule is that one in possession of land holding the legal title without recognition of the equity sought by another, and without application of the rents and profits, is in hostility and it is adverse to that of the party claiming to do equity, because the one in possession has the legal title. Dixon v. Hayes, 171 Ala. 498, 55 So. 164; Toomer v. VanAntwerp, 238 Ala. 87 (11), 189 So. 549, 123 A.L.R. 1064; Ward v. Chambless,238 Ala. 165 (7), 189 So. 890; Coyle v. Wilkins, 57 Ala. 108; Drummond v. Drummond, 232 Ala. 401, 168 So. 428.
The principle has been well recognized in this State, and has been fully observed whether the relation be that of a mortgagor and mortgagee, or where the parties in possession hold a deed which was intended as security for the loan of money as in Richter v. Noll, 128 Ala. 198, 30 So. 740, or where the relation is that of vendor and purchaser. Love v. Butler,129 Ala. 531, 30 So. 735.
The mortgagee in possession after default having a "complete legal title" is presumably in the adverse possession of the land, but the possession of the mortgagor is permissive, and the right to foreclosure is not barred for twenty years, when the debt is conclusively presumed to be paid. Coyle v. Wilkins, supra; Staten v. Shumate, 243 Ala. 261, 9 So.2d 751. But both dates begin to run from the date of the last recognition of the right of complainant out of possession.
In Van Antwerp v. Van Antwerp, 242 Ala. 92, 5 So.2d 73, complainant was actively led by defendant to believe that the possession by defendant was in recognition of complainant's rights. It was therefore not adverse until that status was changed. In respect to a mortgagee in possession after default, there is no such status, and the rule is expressly stated to the contrary. His possession is adverse from the date of the last recognition of the existence of a debt.
The bill alleges that the deed was executed on February 10, 1926, by complainant's seller to respondent's ancestor, Sanders, and that it was held as security for a debt for money advanced complainant to pay the balance of the purchase price.
The statute of limitations in such a suit, as we have said, is ten years from the last recognition, by the grantee, of complainant's equity. The bill alleges that such grantee collected the rent for the years 1934 and 1935 under agreement to apply them on the debt, and then he died. The bill was filed October 20, 1944. It would appear therefore that the bill was filed much more than ten years after the execution of the deed, and therefore the burden was upon the complainant to show special matters excusing his delay. Phoenix Chair Co. v. Daniel, 228 Ala. 579, 155 So. 363; Drummond v. Drummond, supra.
The allegation that the grantee collected the rent for the years 1934 and 1935 means that payment was made and collected during those years, not in advance, when considered upon a demurrer merely that it shows a bar of the ten year statute of limitations. The demurrer did not direct attention to the fact that payment in advance of 1935 for 1935 may be consistent with those allegations. Had that been done probably a more specific allegation that the 1935 rent was paid in 1935 should have been made. If the collection was made in 1935, it occurred within the ten year period immediately preceding the filing of the bill, and would be sufficient to relieve the claim from the bar of the statute. We do not think the bill is subject to the demurrer addressed to it on that or other ground.
The decree of the trial court is reversed, and one here rendered overruling the demurrer and allowing respondent thirty days *Page 496 in which to answer the bill, and the cause remanded.
Reversed, rendered and remanded.
GARDNER, C. J., and LAWSON and STAKELY, JJ., concur.
On Rehearing.