— 1. The possession of lands under an executory contract of purchase, is not adverse to the vendor, so long as the purchase-money is unpaid, or until by the terms of the agreement, the vendee is entitled to demand of the vendor a conveyance of the legal estate. — Seabury v. Stewart, 22 Ala. 207; McQueen v. Ivey, 56 Ala. 308; Ormond v. Martin, 37 Ala. 598. 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 ; and the estoppel applies to whoever may acquire possession from the vendee. — Jackson v. Harden, 4 Johns. 202; Jackson v. Barb, ib. 220; Jackson v. Walker, 7 Cowen, 643; Jackson v. Spear, 7 Wend. 403; Russell v. Erwin, 38 Ala. 44.
We do not, therefore, apprehend that it is at all material in this case, to inquire whether the immediate ancestor of the appellants had the legal title in the premises in controversy, or whether the title resided in his father, Isaac Hudson. The sale by Edward M., to Boberts, from whom the appellees derived possession mediately, was executory. No conveyance *226of the legal title was to be executed until the final payment of the purchase-money in 1863; and until then, possession, whether continuous in Roberts, or transferred to others, was not adverse; and of the title of the vendor there could be no dispute. There could be no pretense of payment in full of the purchase-money, at any earlier period than some time subsequent to the payment of the annual interest on Roberts’ note, on December 27, 1859. Deducting the period of the war, during which- the operation of the statute of limitations was suspended, ten years had not elapsed' from any time, at which payment of the purchase-money could be claimed, when this suit was commenced. After payment the parties in possession could not have more than a perfect equity. Having that equity, it is presumed the possession is antagonistic to the vendor, because all duty to him has been performed, and if the possession is continuous for the statutory period, without some recognition of or subordination to the legal estate of the. vendor, his right of entry, or of action, is barred. But until the expiration of the statutory period, the vendee, or those claiming under him, have but an equity, which can not be interposed to bar an action of ejectment, or the statutory real action. In either action, that of ejectment, or the statutory real action, while the plaintiff must recover only on the strength of a legal title, when he shows such a» title the defendants can not dispute, asserted within the period prescribed by the statute of limitations, he is entitled to recover, whatever may be the equities of the parties, unless the. jurisdiction of courts of law and of equity, are blénded and confused, and transferred from the one or the other, at the mere caprice of parties, or to meet the varying exigencies of particular cases. The radical error pervading all the rulings of the Circuit Court, is that it permitted to be drawn in question the payment of Roberts’ note for.the purchase-money, which was wholly impertinent, immaterial, and without its jurisdiction. The fact could only have been material, if there had been subsequent to the payment, a continuous possession, under claim of title, for a period of ten years, during which the statute of limitations was operative. 1 Brick. Dig. 627, §§ 33-40. The error led to the admission-of evidence of the payment of interest on Robert’s note for 1859, and to proof of the fact that his note was found in pos-' session of Coleman, neither of which facts, was projDer evidence in this cause.
2. The quiet, peaceable possession of lands, for a distinct, marked period of time, attended by a claim of title and by acts of ownership, is prima facie evidence that the legal estate is in the possessor, and the possession will prevail over ss *227subsequent possession not shown to be under a superior legal title. The prior, will prevail over a subsequent possession, however hostile, not continued for the period prescribed by the statute of limitations to bar an entry, or an action to recover possession, because in itself, and of itself, it is evidence of prior right and title, which must remain good, until there is other evidence than mere possession of a superior title. The peaceable, continuous possession of Isaac Hudson, of the premises in controversy, from 1845 to 1849, under claim of title, accompanied by acts of ownership, clearing, improving, and cultivating them, is more consistent with the presumption that he had the full legal estate, than that he was a mere trespasser, or was holding in subordination to the title of another. The presumption strengthens, and’ for all the purposes of this case, becomes conclusive, in the absence of evidence of a superior title, when it is shown that the possession terminated only when he voluntarily transferred it to his son, and there has been since no other possession hostile to it.
The possession of the son was merely.permissive, and was not hostile, but friendly and in strict subordination to the title of the father. The original intention may have been a gift, or an advancement of the lands to.the son, and if that be true, the intention resting only in parol, a mere tenancy at will was created. Such a tenancy has in it no element of hostility to the title of the true owner, which is an indispensable ingredient of an adverse possession. Possession taken under it, could only be rendered adverse. by a dissolution of the tenancy — by an open, clear, positive, continuous disclaimer, and disavowal of the title of the party from whom it is derived, and the assertion of a hostile title brought to his knowledge. — Collins v. Johnson, 57 Ala. 304. Adverse possession rests in the intention of the possessor — as is sometimes said, “the intention guides the entry, and fixes its character.” — Herbert v. Hanrick, 16 Ala. 595. It is manifest from the evidence, that the son never intended the assertion of a title hostile to that of the father; nor is there any room for the imputation of such an intention to any subsequent possessor of the premises. The sale to Roberts was doubtless with the consent of the father, and to meet the wishes and convenience of the son. Coleman and Butt, the last and present possessors of the premises, recognized distinctly the title of the father, and that their possession was subordinate to it, and that it was his title, they contemplated acquiring, when to His agent, they made payment of the interest for 1859, on Roberts’ note to the son. A more distinct recognition, was the substitution of their own note for that of *228Boberts, which was shown, when they produced Boberts’ note, and the appellants offered their note, the body of which was written by the agent of the father, payable to the father, for the exact sum of the purchase-money, payable at the same time Boberts’ note was payable, and stipulating to pay the interest annually, as the interest had been paid on Boberts’ note. The power of attorney from the father, it seems, found its way into the possession of Coleman and Butt, the last and present possessors, and one of its stipulations is, that the agent and attorney shall convey the premises in the name and on behalf of the father, when Boberts note to the son for the purchase-money was paid; and it recites the fact that interest on that note had been paid to January 1st, 1860, corresponding with the receipt for the interest for 1859, given by the agent and attorney, Duncan, which the appellees produced. While on the party claiming protection as an adverse possessor, lies the burden of proving a hostile possession, the court as matter of law pronounces the facts which must enter into and characterize such a possession. In the presence of the distinct recognition of the title of Isaac Hudson, shown in evidence, the court ought not to have hesitated to pronounce the appellees were holding in subordination to it. Nor ought there to have been hesitation in pronouncing that the appellees were estopped from denying the title of the son- — -they were his vendees, entering into possession under him, and proposing to acquire title, by converting themselves into trespassers, enabling themselves, as it has been not too strongly said, “to steal the title of another, by professing to hold under it.” — Kirk v. Smith, 9 Wheat. 288. The claim of title which must enter into and is the characteristic of an adverse possession, has in it no element of stealthiness, nor is it elastic or flexible. There must be publicity, continuity, and good faith in its assertion, leaving to the party in whom the title may reside, or from whom the possession was derived, no room for doubt, that all friendly relations are dissolved, that his title is not recognized, but disputed, and a hostile title asserted. The appellants are the heirs of Edward M., and of Isaac Hudson respectively,. and it is unimportant whether a right of recovery is asserted by them in the one, or the other capacity. If they claim as heirs of Edward M., the appellees standing in the relation of his vendees, or entering and claiming under his vendee, could not dispute his title. Or, if as heirs of Isaac, there is sufficient evidence that the legal estate resided in him, and that the appellees and those under whom they claim have been holding in recognition, and in subordination to his title.
*2293. We have said that it was erroneous, in this action, to enter on any inquiry whether the purchase-money of the lands had been paid. If the inquiry had been material, Coleman’s possession of Boberts’ note, it may be, would have been a circumstance tending to show its payment, or that he had acquired the beneficial ownership of it. It was, however, only a circumstance from which such a presumption could have been raised, open to explanation, and subject to be repelled by evidence that without payment the possession had been acquired. — 1 Green. Ev. § 38; 2 Whart. Ev. § 1362. The note made by Coleman and Butt, the body of which was in the handwriting of Duncan, the agent and attorney in fact of Isaac Hudson, empowered to make titles to the lands, on the payment of Boberts’ note, and to whom Coleman and Butt had paid the interest for 1859, on that note, was admissible for the purpose of negativing the presumption arising from Coleman’s possession of the latter note. It was for the same amount, payable at the same time as Boberts’ .note, with the interest payable annually, as the interest on that note had been paid. The reasonable inference was that it had been substituted for Boberts’ note, which Coleman and Butt must have paid, or caused to be paid, before they could obtain title. Its consideration, like the consideration of Boberts’ note, was the. purchase-money of the lands. The debt was the same, though the debtors were changed, and Coleman and Butt stood in Boberts’ place, vendees in possession under an executory contract of purchase. — Conner v. Banks, 18 Ala. 42.
In all of its rulings the Circuit Court was in error, and the judgment must be reversed and the cause remanded.