TYSON, J.
It seems to be conceded, at least not questioned, that Matilda Butler, the widow of the testator, took a life estate in the land under the will of her husband, and the complainants took a remainder.
Butler, the testator, purchased the laud, by paying [536] two thousand 'dollars, in cash, and executing Ins two promissory notes for two thousand dollars each, ■ find went into possession. He paid one .of the notes, and made, a partial payment on the other, leaving.a balance due upon it of some fourteen or sixteen hundred dollars, at the date of Jhis death in 1879. The sale and purchase was effectuated by. the payment of the cash and tlie execution of the nqtes by Butler to the vendors, who executed to him a bond for title covenanting to convey title.to him of .the land upon .the payment by him of the purchase money notes. On the. 16th day of April, 1881, the life tenant paid to the vendors the balance of the purchase money and they executed to her a deed to the land conveying the,legal title thereto. On the 18th day of April, 1881, Matilda Butler executed a deed to - one of the respondents, J. Y. .Love, conveying, the legal title to the land to him. The life tenant died, in the year 1884 or 1885. Love immediately took possession .of the land under the conveyance .to him and, remained continuously in, the .possession of it up tq March, 1897, collecting the rents for it, .when he,Ayas‘declared,a. non compos mentis, since which time his .wife has been in the possession of it, collecting the rents. This hill ^vas filed July 18th, 1900.
From .the foregoing statement, of ■ facts it will he observed that, nearíy. fifteen years elapsed between the death of the life, tenant,an.d the filing of the bill, and nearly nineteen years since the execution of the deeds by the vendors to Matilda Butler and by her to Love. These, .conveyances were recorded, respectively, April 21st, 1881, and April 23d, 1881.
The-theory of the hill is that the vendors by reserving, the legal title to the land as a security for the payment of the purchase money, were trustees for the testator and that after his death, they became trustees for the complainants as remaindermen under his will. That by the acceptance of the deed from them Matilda Butler acquired, the legal title to the land subject to the trust and, became a trustee,, and that Love also became a trustee by acquiring the legal title from her, it being averred that he had. full knowledge of the facts, The [537] main defense invoked by tlie 'demurrer to tlie bill is tlie statute of limitation oí ten years.. “Tlie vendor of the lands, not parting wit-li his estate, retains it as a security for tlie payment of tlie purchase money. To the contract of sale, in such case, all the. essential ingredients of a mortgage attach.” — Stringfellow v. Ivie, 73 Ala. 209; Hester v. Hunnicutt, 104 Ala. 285.
In Bankhead v. Owen, 60 Ala. 467, it is said: “There, can be no just and proper distinction drawn between a mortgage to secure the payment of the purchase money, executed contemporaneously with the conveyance of the land, and a reservation of the legal estate, as a security for its payment.”
In Conner v. Banks, 18 Ala. 44, this principiéis stated in this language: “It is a well settled rule, that- the vendor of real estate, who has not executed a deed to the purchaser, holds the legal title as a security for the payment of the purchase money; and if he has executed a bond to make titles when the purchase money is paid, the contract in a court of equity will 'be-considered in the nature of a. conveyance to tlie purchaser and a re-conveyance back, by way of mortgage.”
To the same effect is Haley v. Bennett, 5 Port. 452; Chapman v. Chunn, 5 Ala. 397; Kelly v. Payne, 18 Ala. 371; Lowery v. Peterson, 75 Ala. 109.
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TYSON, J.
It seems to be conceded, at least not questioned, that Matilda Butler, the widow of the testator, took a life estate in the land under the will of her husband, and the complainants took a remainder.
Butler, the testator, purchased the laud, by paying [536] two thousand 'dollars, in cash, and executing Ins two promissory notes for two thousand dollars each, ■ find went into possession. He paid one .of the notes, and made, a partial payment on the other, leaving.a balance due upon it of some fourteen or sixteen hundred dollars, at the date of Jhis death in 1879. The sale and purchase was effectuated by. the payment of the cash and tlie execution of the nqtes by Butler to the vendors, who executed to him a bond for title covenanting to convey title.to him of .the land upon .the payment by him of the purchase money notes. On the. 16th day of April, 1881, the life tenant paid to the vendors the balance of the purchase money and they executed to her a deed to the land conveying the,legal title thereto. On the 18th day of April, 1881, Matilda Butler executed a deed to - one of the respondents, J. Y. .Love, conveying, the legal title to the land to him. The life tenant died, in the year 1884 or 1885. Love immediately took possession .of the land under the conveyance .to him and, remained continuously in, the .possession of it up tq March, 1897, collecting the rents for it, .when he,Ayas‘declared,a. non compos mentis, since which time his .wife has been in the possession of it, collecting the rents. This hill ^vas filed July 18th, 1900.
From .the foregoing statement, of ■ facts it will he observed that, nearíy. fifteen years elapsed between the death of the life, tenant,an.d the filing of the bill, and nearly nineteen years since the execution of the deeds by the vendors to Matilda Butler and by her to Love. These, .conveyances were recorded, respectively, April 21st, 1881, and April 23d, 1881.
The-theory of the hill is that the vendors by reserving, the legal title to the land as a security for the payment of the purchase money, were trustees for the testator and that after his death, they became trustees for the complainants as remaindermen under his will. That by the acceptance of the deed from them Matilda Butler acquired, the legal title to the land subject to the trust and, became a trustee,, and that Love also became a trustee by acquiring the legal title from her, it being averred that he had. full knowledge of the facts, The [537] main defense invoked by tlie 'demurrer to tlie bill is tlie statute of limitation oí ten years.. “Tlie vendor of the lands, not parting wit-li his estate, retains it as a security for tlie payment of tlie purchase money. To the contract of sale, in such case, all the. essential ingredients of a mortgage attach.” — Stringfellow v. Ivie, 73 Ala. 209; Hester v. Hunnicutt, 104 Ala. 285.
In Bankhead v. Owen, 60 Ala. 467, it is said: “There, can be no just and proper distinction drawn between a mortgage to secure the payment of the purchase money, executed contemporaneously with the conveyance of the land, and a reservation of the legal estate, as a security for its payment.”
In Conner v. Banks, 18 Ala. 44, this principiéis stated in this language: “It is a well settled rule, that- the vendor of real estate, who has not executed a deed to the purchaser, holds the legal title as a security for the payment of the purchase money; and if he has executed a bond to make titles when the purchase money is paid, the contract in a court of equity will 'be-considered in the nature of a. conveyance to tlie purchaser and a re-conveyance back, by way of mortgage.”
To the same effect is Haley v. Bennett, 5 Port. 452; Chapman v. Chunn, 5 Ala. 397; Kelly v. Payne, 18 Ala. 371; Lowery v. Peterson, 75 Ala. 109.
It is clear from the principles announced in the cases cited above, that the reservation of the legal estate by tlie vendor, as a security for his debt,- is in equity nothing more than an equitable mortgage. The vendee is the owner of the land, and on his death, it descends to»his heirs or to those to whom he may have devised it by will. The vendor is the owner of the purchase money and this claim on his death passes to his executor or administrator. — 3 Pom. Eq. 1261. The vendor is in a sense the trustee for the vendee as is the vendee a trustee for the vendor. But the relation of trustee and cestui que trust is of the same nature and character as that which exists between mortgagor and mortgagee. After the law day of the mortgage, ’ the mortgagee is clothed with the legal title, with an immediate right to the possession. So in the case of vendor and purchaser, under a contract such as is disclosed in this case, the vendor has [538] the legal title and upon a breach of a condition of the bond by the purchaser is entitled to the possession. Should he take possession, there can be no doubt hut that the purchaser has the right to redeem the lands, just as a mortgagor would have in case the mortgagee takes possession. And if the vendor does take possession and retains .it continuously, for a period of ten years, without accounting for the rents and profits or other recognition of the .rights of the purchaser, bis heirs or devisees, their rights are barred. This principle is well settled by several decisions of this court involving the rights of mortgagors and mortgagees. And on this point this case cannot be distinguished from the doctrine declared in those. Humphres v. Terrell, 1 Ala. 650;Byrd v. McDaniel, 33 Ala. 18; Coyle v. Wilkins, 57 Ala. 108; McCoy v. Gentry, 73 Ala. 105; Richter Noll, 128 Ala. 198. Indeed, in Relfe v. Relfe,, 34 Ala. 505, this court said: “So far as the question of staleness, as well as most other questions is concerned, the vendor of land stands precisely as a mortgagee.” It is true the expression quoted was used with reference to the right of the purchaser to defeat the lien of his vendor by invoking the defense of the statute of limitations of ten years. But it is nevertheless decisive of the question, 'so far as the statute of limitations is involved, of the relation that exists between them. If ten years’ possession by the vendor, without recognition of the purchaser’s rights, will bar a recovery by the latter, of necessity, this rule holds good in the case of a sub-vendee of the'original vendor. It may'be conceded, for the purposes of this case, that Matilda Butler was only entitled to a life estate, and as against the complainants she could have never acquired the title to the fee by adverse possession — a question, however which we cío not decide — but it by no means follows that Love, her grantee, could not acquire the whole estate by his possession for fifteen years under her deed to him which conveyed the legal title to the whole estate in the land, if’ during that period he did not recognize the rights or claims "of the complainants, It is now well settled, that if the case [539] stated in the bill is prima fade within the bar of the statute of limitations, objection on that ground may be taken by demurrer. — 3 Brick. Dig., 366, § 468. So, too, it is well settled that where a right or claim is sought to be enforced, prima facia within the operation of the statute of limitations., the complainants must show by positive and specific allegations some act or recognition by the respondent, who is sought to be charged, within the period which will take the ease out of the rule.. — 3 Brick. Dig., 366, § 464. No such act or recognition by Love is alleged in the bill under consideration.—McCoy v. Gentry, supra; Byrd v. McDaniel, supra. It- may be said that the fact® averred showing possession by Love under a conveyance of the legal title are not sufficient to constitute', an adverse possession by him. The answer to this contention i® found in Byrd v. McDaniel, supra, which we quote: “The reply to this is, that the possession of the mortgagee, without any recognition of his relation to the mortgagor, is adverse. * * * The mortgagee, after forfeiture, has tlie legal title; a title which, in the eye of a court of law, is deemed complete. Equity attaches to his relation to the mortgagor the duty of an account, of the .profits, 'and a credit upon the debt of all the accruing profits. If he holds without the performance of the duty imposed by law and does none of those things which recognize the relation, his possession is deemed to be adverse and to be referable to the title which he has at law and not to the qualified title which he has in equity.” Applying this principle to the averments of the bill in hand, the conclusion is that Love’s possession was adverse, at least- since the death of the life tenant.
The bill shows that all of the complainants except William S. Butler were minors at the date of the death of the testator, which occurred at least twenty years before it was filed, -and, it may be, twenty-one years before its filing, and all of them were adults at the date -of its filing. It muy be that it -cannot be affirmed that all the minors had passed the age of twenty-four years at the date of the filing of the bill, but .as they are joined as complainants with William S. Butler [540] whom the bill shows is barred, they- cannot recover. Richter v. Noll, 128 Ala. 198; Loveman v. Hutchinson, 106 Ala. 418.
The decree overruling the demurrer invoking the statute of limitations of ten years will be reversed, and a decree1, will be here rendered sustaining it.
Reversed and rendered.