The rule is now well settled, that if *210tbe case stated in a bill is prima facie within the bar of the statute of limitations, or offensive to the peculiar rules which a court of equity adopts for the discouragement of stale demands, objection on that ground may be taken by demurrer; the defendant will not be put to plea, or compelled to make special defense by answer.- — Nimmo v. Stewart, 21 Ala. 682; Ragland v. Morton, 41 Ala. 344; Johnson v. Johnson, 5 Ala. 90 ; Maury v. Mason, 8 Port. 211. A case does not fall within the operation of this rule, if the suit is for the recovery of property, real or personal, unless it is apparent, on the face of the bill, that for the period prescribed as a bar to corresponding legal remedies there has been a possession hostile to the title the complainants assert. — Edsell v. Buchanan, 2 Vesey, 83; Brooks v. Gibbons, 4 Paige, 374.
2. The demurrer is an admission of the truth of the facts which are well pleaded in the bill. Assuming these facts as true, the complainants have a perfect equitable title to the lands in controversy. The legal estate is outstanding in the heirs of Elijah Corley, but it is held in trust for the complainants. It is apparent that, for more than thirty-seven, years, the equitable title of the appellants has been, subsisting, and they could have demanded from Corley, and his heirs after death, a conveyance of the naked legal title he acquired by the patent issued to him. There is no fact apparent on the bill, indicating that Corley or his heirs have ever disclaimed or repudiated the trust, or asserted the legal title in opposition to the equitable title of the complainants; nor does it appear that there has been, at any time, any actual possession of the lands, or any other possession than such as the law would impute to the title, until the entry of the Smiths and Young. When they entered, is not shown. The only averment is, that they are, at the filing of the bill, in possession, and committing waste. What was the character of their entry ? Whether the mere intrusion of a trespasser, without claiming or asserting title or right, or under claim of title, is not shown. When an undoubted equitable title is shown, the mere dry legal title outstanding, no presumption can arise, that the possession is inconsistent with, or hostile to it. The possession, if nothing more appears, must rather be presumed rightful, in subordination to, and consistent with the title. In Ormond v. Martin, 37 Ala. 598-603, it was said: “The fact of possession was but a link in the claim of title by adverse holding. It is the occupation with an intent to claim against the true owner, which renders the entry and possession adverse.” The whole doctrine of adverse possession, on which the statute of limitations operates, when applied to property, not only barring remedies, *211but working a change of title, is, that for the statutory period there has been a possession, open, notorious, continuous, inconsistent with the title of the true owner. All these elements concur. — Lucas v. Daniels, 34 Ala. 188; Brown v. Cockrell, 33 Ala. 38. The peculiar doctrine which a court of equity applies to demands deemed stale, rests on the long-continued acquiescence of the party affected, in a possession on which the statute of limitations operates.
The bill does not disclose a possession hostile to the title of the complainants, unless it origiñated in the entry of Young and Smiths; and the only facts averred, which show the possession succeeding that entry is hostile, are of very recent date/ The case made by the bill is not, therefore, within the operation of the statute of limitations ; nor is it affected by the mere lapse of time since the complainants acquired the equitable title, and could have demanded a conveyance of the legal title. If facts exist, which show that they have acquiesced in an adverse possession until the statute of limitations would bar a legal title, and a legal remedy for the recovery of the lands, these facts are the proper subject of a plea, or may be incorporated as a defense in the answer.
The sole ground of demurrer was, that the case made by the bill was barred by the statute of limitations, and the lapse of time. It does not so appear; and the decree of the chancellor, sustaining the demurrer, and dismissing the bill, must be reversed, and a decree here rendered, overruling the demurrer, and remanding the cause.
Stone, J., not sitting, having been of counsel.