GOODE v. TEMPLE, 221 Ala. 588 (1930)

130 So. 202

GOODE v. TEMPLE.

1 Div. 608.Supreme Court of Alabama.
October 9, 1930.

Appeal from Circuit Court, Mobile County; Claud A. Grayson, Judge.

Page 589

Harry T. Smith Caffey, of Mobile, for appellant.

A vendee in possession under a contract to purchase, but without a deed, cannot defeat a vendor’s action of ejectment in a court of law, even though he can show full payment of the purchase price, and much less when it affirmatively appears he has failed to pay the purchase price. Morgan v. Casey, 73 Ala. 222; McRae’s Adm’r v. McDonald, 57 Ala. 423; Rankin v. Dean, 157 Ala. 490, 47 So. 1015; Dinkins v. Latham, 154 Ala. 90, 45 So. 60; McPherson v. Walters, 16 Ala. 714; 50 Am. Dec. 200; Hooper v. Columbus W. R. C., 78 Ala. 216. Even in equity he must show full payment of the purchase price. McRae’s Adm’r v. McDonald, supra; Halle v. Brooks, 209 Ala. 486, 96 So. 341. The possession of the original vendee and of defendant is shown to have been in recognition of and in subordination to the legal title of the vendor and her heirs; consequently there was no element of adverse possession. Harrison v. Sollie, 206 Ala. 284, 89 So. 562; Mizarmore v. Berglin, 197 Ala. 111, 72 So. 347, L.R.A. 1916F, 1024; Potts v. Coleman, 67 Ala. 225; Robinson v. Shearer, 211 Ala. 16, 99 So. 179; Rankin v. Dean, supra; Morgan v. Casey, supra.

Outlaw Kilborn, of Mobile, for appellee.

Brief did not reach the Reporter.

BOULDIN, J.

Statutory action of ejectment.

Both parties claim through Anna B. Giles, deceased, the common source of title; the plaintiff as her heir at law, and defendant as surviving husband of her vendee under executory contract to convey.

Without dispute the purchase money was never fully paid. It was long past due when suit begun.

The right to sue in ejectment to recover possession in such case is not to be questioned. Clements v. Taylor, 65 Ala. 363; Walker v. Crawford, 70 Ala. 567; Micou v. Ashurst, 55 Ala. 607; Morgan v. Casey, Adm’r, 73 Ala. 222.

No adverse possession presented a bar. Without dispute the purchaser held as such and continued to make small payments on the purchase money until within less than ten years from the filing of this suit. Moreover, this defendant, since her death, has held in recognition of the rights of the vendor. Relfe v. Relfe, 34 Ala. 500, 73 Am. Dec. 467; Walker v. Crawford, supra; Harrison v. Sollie, 206 Ala. 284, 89 So. 562.

The judgment should have gone for plaintiff and not defendant.

Reversed and remanded.

ANDERSON, C. J., and GARDNER and FOSTER, JJ., concur.