
    (130 So. 202)
    GOODE v. TEMPLE.
    1 Div. 608.
    Supreme Court of Alabama.
    Oct. 9, 1930.
    
      Harry T. Smith & Caffey, of Mobile, for appellant.
    Outlaw & Kilborn, of Mobile, for appellee.
   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, O. J., and GARDNER and FOSTER, JJ., concur.  