Mathis v. Thurman

143 Ala. 558

Opinion

ANDERSON, J.

The uncontradicted evidence of the defendant was that he bought the property in 1893, and still owns it, but that he turned it over to W. A. Bean, his son-in-law, and the defendant to the judgment under which plaintiff claims title as purchaser, and that the said Bean had been in possession by his consent ever since. While there was no proof of a technical loan, the proof brings the transaction within the terms of section 1013 of the Code of.1896, “Vesting the title in the person in possession under such a loan, as to purchasers and creditors of such person, after three years from the commencement of such loan,” etc. — Carr v. Lester, 90 Ala. 349; Meyers v. Peck, 2 Ala. 648; Gressett v. Agee. 14 Ala. 354.

In order, however, for the plaintiff to have a title superior to that of the original owner, he must hold under a purchaser or a creditor who purchased the property, or gave credit to the person in possession, three years after the commencement of the loan, as said section does not apply to creditors anterior to the loan or the expiration of three years from the commencement thereof.— Carew v. Love, 30 Ala. 577; Durden v. McWilliams, 31 Ala. 206.

The burden is upon the party seeking the benefit of the statute to bring himself within its protection. While the judgment was had subsequent to the loan, there is nothing to indicate when the plaintiff therein became a creditor. It may have been before the loan, or prior to three years after the .commencement thereof. We cannot assume when the debt was contracted. — Ely v. Blacker, 112 Ala. 311.

The assignments of error are without merit.

Reversed and remanded.

• McClellan, C. J., Tyson and Simpson, J.J., concurring.