railroad track. It seems that the engineer and crew used all reasonable diligence, consistent with personal safety, after daylight, and information of the overflow, to procure a bateau in order to reach the car where the goods were stored. The engineer testifies that he tried to get up steam, but the water had entered the fire-box of the engine; that then all was done that could be done to save the goods, but without avail, the water continuing to rise in the cars to a depth of eighteen inches above the floors. There was no evidence introduced or offered to controvert this statement of the facts of the case.

Whether the court below erred in the admission or exclusion of testimony offered, or in the charges given or refused, the undisputed facts show that the defendant was entitled to the general charge in its favor: Moody v. Walker, 89 Ala. 619; Stephens v. Regenstein, 89 Ala. 561, 18 Am. St. Rep. 156. Affirmed.

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COMMON CARRIER · LIABILITY FOR LOSS OF GOODS BY FLOOD. — A carrier of goods will be excused for loss of goods caused by an unprecedented flood: Nashville etc. R. R. Co. v. David, 6 Heisk. 261; 19 Am. Rep. 594; note to Norris v. Savannah etc. R'y Co., 11 Am. St. Rep. 365, discussing fully the subject of loss by flood.

LONG v. GEORGIA PACIFIC RAILWAY COMPANY.

[91 ALABAMA, 519.)

CORPORATIONS — ULTRA VIRES EXECUTORY CONTRACT. While an ultra vires contract made with a corporation remains executory neither party to it is estopped from asserting its invalidity, nor can either enforce it against the other, even though the fruits of the contract have been received and enjoyed. CORPORATIONS - ULTRA VIRES EXECUTED CONTRACT. When an ultra vires contract made with a corporation has been fully executed by both par ties, neither of them can assert its invalidity as a ground for relief against it.

Hewitt, Walker, and Porter, and Coleman and McIntyre, for the appellant.

James Weatherly, for the appellee.

MCCLELLAN, J. The case made by the amended bill is this: On April 23, 1883, the complainant, B. M. Long, and his wife, Amanda C. Long, executed to the Georgia Pacific Railway Company a deed, upon valuable consideration presently paid, to and of the iron, coal, and oil interests and properties in and pertaining to certain tracts of land, aggregating about four

thousand acres, the said Long retaining the fee to said lands, except in respect to said mineral interests, and continuing in possession thereof. The grantee is a corporation, and was and is without power to purchase and hold said land, or the mineral interests in the same. The bill seeks to have the deed declared void because of this incapacity of the corporation, and to have the same canceled as a cloud upon complainant's title. The bill was demurred to on several grounds, and the demurrer was sustained generally, the decree to that end being now assigned as error.

Only those grounds of error which present the question whether a vendor who has sold, received payment for, and conveyed land to a corporation which had no power to hold the same can have any relief in respect to the transaction are discussed in argument, and to these our consideration will be confined, since it is manifest that the determination of this question, in line with the decree below, as we think it must be determined, will be fatal, not only to the present appeal, but to complainant's cause of action.

It is thoroughly well-settled law that a party to an ultra vires executory contract made with a corporation is not estopped to set up the want of corporate capacity in the premises, either by the fact of contracting, whereby the power to contract is, in a sense, admitted or recognized, or by the fact that the fruits or issues of the contract have been received and enjoyed; and this, though the assault upon the transaction comes from the corporation itself: Marion Sav. Bank v. Dunkin, 54 Ala. 471; Chambers v. Falkner, 65 Ala. 448; Sherwood v. Alvis, 83 Ala. 115; 3 Am. St. Rep. 695; Chewacla Lime Works v. Dismukes, 87 Ala. 344. But where the contract is fully executed, where whatever was contracted to be done on either hand has been done, - a different rule prevails. In such case the law will not interfere, at the instance of either party, to undo that which it was originally unlawful to do, and to the doing of which, so long as the contract to that end remained executory, neither party could have coerced the other. As declared by Mr. Bishop, "the parties' voluntarily doing of what they have unlawfully agreed places them, in effect, in the same position as if the contract had been originally good; neither can recover of the other what was parted with. The reason for which is, that since they are equally in fault, the law will help neither": Bishop on Contracts, sec. 627.

The former decisions of this court are in line with this doc

trine, and fully recognize the distinction between executory and executed void contracts, to the effect that while suits to enforce the former may always be defended on the ground of their invalidity, no relief prayed upon such ground can be granted with respect to the latter: Morris v. Hall, 41 Ala. 510; Ingersoll v. Campbell, 46 Ala. 282; Sherwood v. Alvis, 83 Ala. 115; 3 Am. St. Rep. 695; Dudley v. Collier, 87 Ala. 431; 13 Am. St. Rep. 55; Craddock v. American etc. Mortgage Co., 88 Ala. 281. And this is the doctrine generally declared by other courts: Thomas v. Railroad Co., 101 U. S. 71; Day v. Spiral S. B. Co., 57 Mich. 146; 58 Am. Rep. 352; Parish v. Wheeler, 22 N. Y. 494; Miners' Ditch Co. v. Zellerbach, 37 Cal. 543, 606; 99 Am. Dec. 30; Terry v. Eagle Lock Co., 47 Conn. 141.

There is no question but that the case presented by the bill involved a contract on the part of the railway company to buy, and on the part of the complainant to sell, certain interests in the land described. It is equally clear that the payment of the agreed price on the one hand, and the execution of the conveyance on the other, fully executed this contract on both sides, left nothing to be done by either party in the premises, and bring the transaction within the principle we have been considering, which denies to the complainant any relief in respect to it.

The same conclusion is reached by another well-established principle. It is, that when a party sells and conveys property to a corporation which is without power to purchase and hold the same, and receives compensation therefor, there being no fraud in the transaction, he is in no sense injured or prejudiced by the incapacity of the corporation, nor can he be heard to complain of it; but the question becomes one between the corporation and the state, the sovereign alone having the right to impeach the transaction; and until it supervenes for this purpose, the corporation is vested with perfect title against all the world, defeasible only on office found: Rutland etc. R. R. Co. v. Proctor, 29 Vt. 93; Leazure v. Hillegas, 7 Serg. & R. 318; Goundie v. Northampton Water Co., 7 Pa. St. 233; Baird v. Bank of Washington, 11 Serg. & R. 411; Lathrop v. Commer cial Bank, 8 Dana, 114, 129; Hough v. Cook County Land Co., 73 Ill. 23; 24 Am. Rep. 230; Cowell v. Springs Co., 100 U. 8. 55; Reynolds v. Crawfordsville etc. Bank, 112 U. S. 405, 413; 2 Morawetz on Private Corporations, sec. 710.

The decree of the chancellor is affirmed; and the same re

sult is reached in the case of B. L. Jones and B. B. Long. Georgia Pacific Railway Company, submitted with this case, and involving the same question.

Affirmed.

CONTRACTS-ULTRA VIRES.

CORPORATIONS A contract wirs while it remains executory, cannot be enforced, but when it has been cuted, the corporation is estopped to deny its validity: Sherman de. Oa Morris, 43 Kan. 282; 19 Am. St. Rep. 134, and note; as to the effect of the plea of ultra vires in the case of executory contracta, see Jemison v. Citizens' de. Bank, 122 N. Y. 135; 19 Am. St. Rep. 482, and note.

NEWSOME V. Sxow.

[91 ALABAMA, 641.]

VENDOR AND VENDEE — ADVERSE POSSESSION BY VENDER WITHOUT DEED.— A vendee in possession of land under a contract to purchase, whether oral or written, who has paid the entire purchase-money, holds adverse possession as against his vendor from the time that such payment was made; nor is his possession prevented from being adverse by his knowledge of a defect in his title, or his subsequent demands for a deed. EJECTMENT by C. Snow and three of his sisters, children of Dudley Snow, deceased. S. L. Newsome intervened as the landlord of the tenant in possession, and pleaded the statute of limitations. Judgment for the plaintiffs, and Newsome appealed.

Matthews and Whiteside, for the appellant.

Kelly and Smith, for the appellee.

CLOPTON, J. The conclusions of fact from the evidence are, that the lot of land sued for was the property of Dudley Snow, the ancestor of the plaintiffs, at the time of his death. Henry Snow, who was co-heir and tenant in common with the plaintiffs, acting as their agent, but without written authority, Bold the lot in the spring of 1876 to J. M. Hays, the vendor of the defendant. At the time of the contract of sale, Hays paid the purchase-money and entered into possession under the contract, and he continued in possession, exercising acts of ownership, claiming it as his own, until 1883, when he sold the lot to defendant, who entered and continued in possession to the commencement of the suit. Defendant and Hays, under whom he claims, were in the open, notorious, and continuous adverse possession for the length of time requisite to bar

plaintiffs' right of entry, if there was no recognition of or subordination to their legal estate.

Plaintiffs insist, however, that the repeated requests of Hays and defendant that the heirs of Dudley Snow should execute a deed to the lot of land was a recognition of their title, operating to defeat the adverse character of the possession. The evidence does not disclose that there was a written contract of sale and purchase between Henry Snow and Hays. In the absence of such proof, we shall presume that it was oral. In either case, the purchase-money having been paid, the character of the possession is the same. It is well settled that when the vendee has complied with the terms of the contract on his part by paying the purchase-money, and is entitled to the legal title, whether the contract be in writing or by parol, having discharged all pecuniary duty to the vendor, he has a perfect equity, and his possession in pursuance of such sale and purchase is presumed to be antagonistic, and if continu ous for the statutory period, will bar the vendor's right of entry or of action, which presumption may be rebutted or overcome by showing recognition of the vendor's right of entry or a subordination to his legal estate: Potts v. Coleman, 67 Ala. 221; Tillman v. Spann, 68 Ala. 102.

It is true that Hays testifies that at the time he bought the lot he understood that it belonged to the heirs of Dudley Snow. It is not essential that defendant's claim of right or title should be good, or believed to be good. Knowledge that his title is defective does not prevent his possession from being adverse, if the other essential elements exist. It is sufficient that there is a bona fide purpose to assert and rely upon his possession and claim of right, as hostile or adverse to that of the real owner: Bernstein v. Humes, 75 Ala. 241; Manly v. Turnipseed, 37 Ala. 522; Alexander v. Wheeler, 69 Ala. 332. Actual claim of ownership, not the bona fides or strength of the claim, is the test or element of adverse possession: Smith v. Roberts, 62 Ala. 83. The expression "good faith, claiming title," found in many of the decisions, must not be understood to involve an inquiry as to the defendant's belief in the strength of his title, or to mean that, to constitute his possession adverse, he must claim in good faith to have the real title, as counsel seem to suppose, before the bar of the statute is complete. Good faith in claiming possession and right of ownership—the real intention to claim possession as his own, distinct from and hostile to the possession and title of the true