
    Coskrey et al. v. Smith.
    
      Statutory Action of Ejectment.
    
    
      1. Vendor and purchaser; rights of purchaser as against title acquired at the foreclosure of a lien. — While it is generally true that a title acquired upon foreclosure of a lien relates back to the inception of the lien, so as to. cut off intervening alienations, such rule has no application to grantees of the legal title before the foreclosure, upon a valuable consideration and without notice; and, therefore, one who purchases lands upon a valuable consideration without notice of a note for a part of the purchase money being outstanding, and receives a conveyance thereof, acquires a title superior to a purchaser at a subsequent sale under a foreclosure of the lien of the vendor for the unpaid balance of the purchase money as evidenced by said note.
    Appeal from the Circuit Court of' Pike.
    Tried before the Hon. John P. Hubbard.
    This was a statutory action of ejectment, brought by the appellee, R. W. Smith, against D. B. Ooskrey, as tenant of A. I). Wall, H. M. Sessions ’and C. A. Stokes, Avho Avere also made parties defendant to the suit. The ■cause AA'as tried upon issue joined upon the plea of “not guilty.77
    On the trial the plaintiff introduced evidence tending to show the folloAving facts: On January 31, 1891, M. Connor and Avife sold to R. C. Freeman the lands involved in .this suit and executed a deed thereto, which was regular in every Avay. R. C. Freeman went into possession of the land under this deed, and on September 28, 1891, he and his wife sold said land to W. T. Freeman and executed a deed properly acknowledged and filed for record. Under this deed W. T. Freeman went into possession of said lands and subsequently borrowed from R. W. Smith, the plaintiff, the sum of $570.58, for which' he executed his note and mortgage to said R. W. Smith. Subsequently, on February 18,1893, the said. W. T. Freeman and wife executed their note and mortgage to R. W. Smith on said lands to secure the same-indebtedness. On January 19, 1897, W. T. Freeman and wife executed a deed to said lands to said Smith, in satisfaction of the indebtedness -secured by said mortgages, -and it is under this deed the plaintiff claims title-to the property sued for.
    The defendants introduced in evidence a note which was executed on December 11, 1893, by W. T. Freeman and R. O. Freeman, for $210.80, which was made payable on October 15,1891. The defendants further proved, that at the time of the execution of the deed introduced in evidence by the plaintiff from E. O. Freeman to W. T. Freeman, the said W. T. Freeman executed, as a part of the consideration of the purchase of said lands conveyed in said deed, the note for $210.80, which was introduced in evidence. It was further shown that the note-had never been paid, and that E. O. Freeman transferred said note to Wall, Stokes & Oo., a partnership composed of the defendants, A. D. Wall, O. A. Stokes and H. M. Sessions; that said note belonged to Wall, Stokes & Co., on May 17, 1897, at which -time they filed their bill of complaint in chancery for the purpose of enforcing a vendor’s lien upon the lands here sued for, in order to secure the payment of said note. This bill wms filed against W. T. Freenran alone.
    On June 7,1898, the chancery court rendered a decree-adjudging that the complainants in said bill had a vendor’s lien upon said land. On February 6,1899, a decree-was rendered in the chancery court ordering the sale of said land for the satisfaction of complainant’s demand. Subsequently, on March 20, 1899, the lands were sold by the register of the court and purchased- by A. D. Wall, C. A. Stokes and H. M. Sessions, the defendants in the-present suit; the register making a deed of said lands-to the purchasers. It was further shown that the defendant, D. B. Coskrey, was the tenant of the other defendants, and in possession of said land.
    Upon the introduction of all the evidence, the court,, at the request of the plaintiff, gave the general affirmative charge in his behalf. The defendants duly excepted to the giving of this charge and also excepted to the court's refusal to give the general affirmative charge requested by them.
    There were verdict and judgment for the plaintiff. The ■defendants appeal, and assign !as error the giving of the general affirmative charge requested by the plaintiff .and the refusal to give the general affirmative charge requested by the defendants.
    Foster, Sajiford & Carroll and Sollie & Kirkland, for appellant,
    cited, 20 Encyc. of Law, 733, 734; 8 Encyc. ■of Law, 273; 2 Jones on Mortgages, § 1554.
    M. N. Carlisle, contra.
    
   MoCLELLAN, C. J.

The doctrine whereby a title .acquired upon foreclosure of a lien relates back to the inception of the lien so as to cut off intervening alienations has no application to grantees of the title before foreclosure upon valuable consideration and without notice. There was no occasion or opportunity for Smith, the plaintiff in this statutory real action, to formally propound his status as a purchaser of the legal title for value and without notice of the lien by replication or other pleading; but he brought himself and his title prima facie within the protection of that principle when he showed by uncontrovertible evidence that he was a purchaser for value of the legal title and that it ivas conveyed to him by the mortgages executed by W. T. Freeman, and also by the latter’s deed in satisfaction of the last mortgage. Upon the case thus made, the onus was on the defendants to show that he so purchased and paid value with notice of the lien in favor of W. T. Freeman’s vendor. This onus not having been discharged, no evidence tending to show such notice having been ■offered, Smith, the plaintiff, vas entitled to the affirmative charge given for him by the court.

Affirmed.  