Hair v. Grigsby. and the sale to Hair was prior to the sale to Grigsby. W. & R. Kelly filed their bill against Boling and Evans, and it is clear from the record of that suit and from the deed to Hair, that all the right and title of Boling and Evans passed to Hair. Hence the legal title, which was held by Boling, and the equitable title, which was in Evans, are both vested in Hair, but, of course without prejudice to strangers to the suit. The question then is, what title has Grigsby? It might be conceded that he bas all the right and title which Evans had at the time of the decree, under which Grigsby claims, or at any time before. This concesion would only produce this result, that the equitable title of Evans is now in Grigsby,-leaving the legal title, which was held by Boling, in Hair, under his purchase. Upon the legal title alone, Hair could recover the land at law. The charge of the Circuit Court upon this point was, therefore, erroneous, as as we think. The legal title which was in Boling neither was nor could have been affected in any manner by the decree under which Grigsby claims, because Boling was not a party to that suit.-Doe ex dem. Duval's Heirs v. McLoskey, 1 Ala. 708. It is contended by Grigsby's counsel, that as the note upon which the bill of W. & R. Kelly was filed, was transfered without recourse by Boling, the lien upon the land for that part of the purchase money did not pass, and further that the bill of W. & R. Kelly was not adapted to the claim of such a lien, but that they went into chancery as creditors at large of Evans, to subject his equitable interests to the payment of their judgment, and that therefore their lien on the land could only date, at most, from the time of filing their bill, which was subsequent to the date of the lien, which was properly asserted by Keeland's bill. Even if we could admit all these propositions, the ground upon which we have placed our opinion above is not answered. Hair holds the legal title and more-he holds such equitable title as Evans had at the time, when the suit in equity was commenced under which Hair claims, at least. This legal title must prevail at law, over the title of Grigsby. This is all that we decide. Let the judgment be reversed and the cause remanded. 18 50 113 377 JOHNSON ET ALS. vs. TOULMIN ET ALS. 1. The perception of the entire profits by one tenant in common is not of itself sufficient to divest the possession of his co-tenant, nor are acts of ownership by one tenant in common necessarily to be construed into acts of disseisin; but an undisturbed and peaceable occupancy of the premises by one for near thirty years, under an exclusive and notorious claim of title, without any payment of rents and profits, or any acknowledgment of the right of the other, is sufficient to raise the presumption of an actual ouster. 2. Although statutes of limitation do not apply to demands purely equitable, yet courts of equity, acting in accordance with legal analogies, adopt these statutes in cases analogous to those in which they would apply at law. 3. Where one tenant in common of an equitable title, after the abandonment of possession by both and their removal from the State, returned and made a new and distinct contract of purchase with the vendor, from whom he received a deed to himself individually, which he had duly recorded, the mere fact that he, about the same time, caused the original unexecuted contract, under which he and his co-tenant previously held, to be spread upon the record, is not sufficient to rebut the presumption of an adverse possession arising from a long continued, notorious, and peaceable occupancy under the new purchase. 4. Where a defendant relies on the plea that he is a bona fide purchaser without notice, he must deny notice fully and positively, though it be not charged in the bill, and if facts be charged from which such notice may be infered, he must deny such facts. 5. Acquiescence and laches for a great length of time by a party out of possession, productive of much hardship and injustice to others, cannot be excused except by showing some actual impediment or hindrance caused by the fraud or concealment of the party in possession, which will appeal to the conscience of the chancellor. In such case, a court of equity, acting on principles peculiarly its own, founded on lapse of time and the staleness of the demand, in its desire to promote the peace and repose of society, although no statute of limitations apply, will not interpose and grant relief against an adverse right. ERROR to the Chancery Court of Mobile. Tried before the Hon. J. W. Lesesne. THE bill in this case was filed by the plaintiffs in error as the heirs at law of Thomas Johnson against Theophilus Toulmin, Johnson et als. v. Toulmin et als. the heirs of Daniel Juzan, and the heirs of David Files, for the purpose of redeeming mortgaged premises, for an account, &c. The facts are sufficiently stated in the opinion of the court. SEWALL, for the plaintiffs: 1. Files & Lyon, the purchasers from Juzan, went into possession under the contract with him in 1813. It was a jointpurchase; they were tenants in common; their possession was co-extensive with their right, and the possession of one was the possession of both.-Adams on Eject. 54, and notes. This possession continued the same until 1816, when Files took a deed from Juzan and gave back a mortgage, but there is no evidence that this act was intended by Files to show that he claimed exclusively for himself and adversely to the rights of Lyon, under the original contract. On the contrary, there is evidence of the most conclusive kind to show that by that act he did not intend to change the rights of the parties-for at the same time that he took the deed from Juzan he placed with it upon record the original contract of 1813, thereby admitting and declaring, in the most public manner, that he took the title in subservience to the rights of Lyon, under that original contract, and would hold it as trustee for Lyon to the extent of his interest. But even without this declaration, he would be held a trustee for Lyon for one moiety.-Champion v. Brown, 6 John. Ch. 402-3; Hoagland v. Laturette, 1 Green. Ch. 254. This act of Files was a further admission that Lyon had, on his part, complied with the terms of the contract and made his proportion of the payments. The possession, thus acquired, remained as before-a silent possession by Files until his death, in 1820, unaccompanied by any act amounting to an ouster-or by any notice to his co-tenant, Lyon, that his possession was adverse, and therefore cannot be construed into an adverse possession. McClung v. Ross, 5 Wheat. 124. Files never denied the right of Lyon; nor have his heirs ever denied the right of those claiming under Lyon. Their joining in this bill is an admission of their right. Lyon never abandoned his rights in said contract with Juzan. Absence from the State is no abandonment; on the contrary, his sale and conveyance to Johnson, in 1816, by deed of warranty, was an affirmance of his Johnson et als. v. Toulmin et als. rights, and conclusive to show that he had no intention of abandoning them. The abandonment set up in the answer is not responsive to any allegation, charge, or interrogatory contained in the bill, and cannot therefore be taken as true; besides, it was put in issue by the replication, and is wholly unsustained by proof. The heirs of Johnson then had a perfect right to ask for a redemption of the mortgage made by Files, and conveyance from his heirs or assignee of a moiety of the land. Toulmin succeeded to the rights of Files in 1828, and went into possession, claiming to hold adversely to the complainants. He was the son-in-law of Juzan, and claims that he paid off the mortgage made by Files and received conveyances from the other heirs. As to the heirs of Johnson, Toulmin having acquired the mortgage interest from the other heirs of Juzan, is in the position of a mortgagee in possession, from 1828, and is liable to them in this suit, unless their claim is barred by the statute of limitations, or he is protected as a bona fide purchaser for a valuable consideration, without notice. 2. The statute of limitations is not a bar to complainants' claim. The first act adverse to their rights was the sale in June 1925, at which Toulmin was the purchaser; but this purchase was not perfected till 1828-then he paid the purchase money, received his title deed and went into possession, as he states in his answer. This was the first adverse possession, and the statute commenced running only from this time, and nothing less than twenty years would be a bar. The mortgagor was in possession up to this time-not holding adversely to the complainants, but for them; and where the mortgagor continues in possession, no length of time will bar the equity of redemption, and even a possession of a part of the mortgaged premises will keep alive the right to redeem.—Ang. & Am. Lim. 501, § 16, and cases cited; Oliver v. Piatt, 3 How. S. C. 411. But even if it commenced running in 1825, under our acts and decisions the statute was no bar.-Henry & Wife v. Thorpe, 14 Ala. 103; Doe ex dem. Nichols v. Haskins, 15 ib. 619. Toulmin's admission in his answer, that he went into possession in 1828, and paid off the mortgage of Files, is conclusive on him that the mortgage was a valid, subsisting security, and the mortgagor in possession within twenty years before suit brought.-Price v. Cooper, 1 Sim. & Stu. 347. Johnson et als. v. Toulmin et als. 3. The objection of lapse of time and staleness of the claim is not a bar to a recovery. The death of Johnson and of Files, the infancy of their heirs and the non-residence of Johnson and his heirs, sufficiently account for the delay in bringing the suit. Besides, when the claim includes the right to redeem a mortgage, nothing short of an adverse claim and possession of twenty years will bar it. All the cases where the objection of lapse of time has prevailed have been cases for specific performance merely, or cases merely setting up trusts. where the right of redemption has been twenty years adverse possession. There is no instance barred by less than 4. The defence of bona fide purchaser, &c., is insufficiently pleaded. It does not deny notice at the time the money was paid and deed given, in 1828, nor does it deny every fact from which notice might be infered-nor does it admit title and possession in the seller.-Story Eq. Pl. §§ 805-6; Met. Eq. Pl. (last edit.) 274-5; Davis v. Thomas, 2 G. & Coll. 234. CAMPBELL, for the defendants: The plaintiff's grantor entered into a contract with Daniel Juzan, dated in 1813, to which David Files was also a party jointly, with the plaintiff, for the purchase of land in Mobile. county. The terms of this contract were not performed by the parties, (Files & Lyon,) and the answer charges that it was considered as abandoned. In 1817, several years after the contract had been made and while the parties (Lyon & Files) were in default, a new contract was made between Files and Juzan, by which Juzan conveyed the land to Files and took a mortgage to secure the purchase money. The conveyance to Files is absolute and with warranty. Files entered upon the land and retained it until his death. After his death the land was sold as his own and Toulmin became the purchaser, paying $850 for the title, and agreeing to pay off $3,000 and upwards, still due on the mortgage of Files to Juzan. The plaintiff's grantor conveyed to the plaintiff in 1816. It does not appear from the evidence that he ever made claim on the contract from that time until this suit was brought. The order of sale of the land was made in 1824: The sale took place in 1825, and the order of confirmation was in 1823. It does not appear that the plaintiff or his grantor ever paid a cent on the |