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 *Page 286 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 aside, the decree of the trial court will be reversed, a decree will be here rendered granting the relief prayed for, and the cause will be remanded for further proceedings in accordance with this opinion.
Reversed, rendered, and remanded.
All concur, except THOMAS, J., who dissents.