¶1(concurring specially).
¶2It seems to be the -theory of the majority opinion that the statute of limitations, Code 1940, Tit. 7, § 20, applies only to possessory actions and that, since the complainant is not entitled to the immediate possession of the property, the statute of limitations is inapplicable. My view is that the bill affirmatively shows on its face that the suit is barred by the statute of limitations of ten years, § 20, Tit. 7, supra.
¶3Section 18, Tit. 7, Code 1940, provides as follows:
“All other civil actions, in law or equity, must be commenced after the cause of action has accrued within the period prescribed in this chapter and not afterwards, unless otherwise specifically provided for in this Code.” [Emphasis supplied.]
¶4*350Section 20, Tit. 7, Code 1940, supra, prescribed the following limitation:
“The following must be commenced within ten years:
… *
“Actions for the recovery of lands, tenements, or hereditaments, or the possession thereof, except as herein otherwise provided. …
¶5It is well established by the decisions of this court that “in a suit of this kind, the statute of limitations is ten years as in the nature of a suit for the recovery of land since land is the subject matter of the suit..” Knowles v. Canant, 255 Ala. 331, 334, 51 So. 2d 355, 358; Barnett v. Waddell, 248 Ala. 189, 195, 27 So.2d 1; Woods v. Sanders, 247 Ala. 492, 495, 25 So.2d 141; Miles v. Rhodes, 222 Ala. 208, 209, 131 So. 633. Cf. Smith v. Hart, 259 Ala. 7, 9, 10, 65 So.2d 501; Van Ingin v. Duffin, 158 Ala. 318, 321, 48 So. 507, 132 Am.St.Rep. 29.
¶6Also, “in this jurisdiction it is a settled rule that the statute of limitations may be set up in equity by demurrer where the bill shows that the cause of action stated in the bill is prima facie within the bar of the statute of limitations, or offensive to the rules which courts of equity adopt for the discouragement of stale demands.” State, for Use of Houston County v. United States Fidelity & Guaranty Co., 239 Ala. 445, 447, 195 So. 426, 427; Van Ingin v. Duffin, 158 Ala. 318, 320, 48 So. 507, 132 Am.St.Rep. 29; Lovelace v. Hutchinson, 106 Ala. 417, 424, 17 So. 623.
¶7A cause of action “accrues” when a suit may be maintained thereon; whenever one person may sue another. As stated in 1 Am. Jur., Actions, § 60, p. 451 :
“In determining whether an action * * * has been so tardily commenced as to be barred by the Statute of Limitations, it becomes necessary to deter'mine'when the cause of action accrued. This is determined by ascertainment of the 'time when the plaintiff could first have maintained >his action to' enforce his cause of action.”
¶8See, also, Esslinger v. Spragins, 236 Ala. 508, 513, 183 So. 401; Van Ingin v. Duffin, 158 Ala. 318, 321, 48 So. 507, 132 Am.St. Rep. 29, supra. In the Esslinger Case [236 Ala. 508, 183 So. 405] it is said that “ 'the cause of action accrues as soon as a party in whose favor it arises is entitled to begin and prosecute an action thereon.’ ”
¶9. There seems to be no question that complainant could -have filed her bill immediately after the execution and delivery of the deed to her mother and stepfather in February, .1926. Her right to sue originated at that very moment. It was then and there that her cause of action accrued, and the statute of limitations- against its assertion commenced to .run at that time. Thornton v. Rodgers, 251. Ala. 553, 557, 38 So.2d 479; Wragg v. City of Montgomery, 245 Ala, 362, 364, 365, 17 So.2d 173; Herren v. Beck, 231 Ala. 328, 331, 164 So. 904; Lewis v. Belk, 219 Ala. 343, 344, 122. So. 413; Bellamy v. Pitts, 216 Ala. 40, 42, 112 So. 328; Dallas Compress Co. v. Smith, 190 Ala. 423, 67 So. 289; Haney v. Legg, 129 Ala. 619, 627, 30 So. 34, 87 Am.St.Rep. 81; Robinson v. Pierce, 118 Ala. 273, 302-306, 24 So. 984, 45 L.R.A. 66, 72 Am.St.Rep.( 160.
¶10As thus stated in Haney v. Legg, supra [129 Ala. 619, 30 So. 36]:
“The principle applicable to this phase of the case is clearly stated in a note in 2 Perry, Trusts (5th Ed.) to section 865 in this language: ‘When a trust is imposed by law, as in the case of a resulting trust, the statute [of limitations] begins to run in favor of the holder of the legal title against the equitable owner at the time of the conveyance, if there is no recognition of the cestui’s rights; if his rights are recognized, then at the time when the holder of the legal title begins to hold adversely.’ ”
¶11The following is quoted from Herren v. Beck, supra [231 Ala. 328, 164 So. 906]:
“There is a well-defined principle o- our cases to the effect that when a re-mainderman’s title passes out of him, - -but1 subject-to- his equitable, right, to have it reinvested or to be subjected to *351a lien or trust, such right and duty to sue occurs as soon as the instrument is executed, not affected by the circumstance of its recordation. That duty is not postponed because the grantor in the instrument does not possess the immediate right of possession, but is subject to a life estate. He must not wait until the life estate terminates, without being chargeable with the time intervening, since his action does not affect his possession, but his title. So that the period of time necessary to complete the bar of prescription [and I add: or the bar of the applicable statute of limitations] is not in that event affected by the period of such life estate. Lewis v. Belk, 219 Ala. 343, 122 So. 413; Robinson v. Pierce, 118 Ala. 273, 302, 303, 304, 305, 24 So. 984, 45 L.R.A. 66, 72 Am.St.Rep. 160; Lowery v. Davis, Ala.Sup., 8 So. 79; Lansden v. Bone, 90 Ala. 446, 8 So. 65; Woodstock Iron Co. v. Fullenwider, 87 Ala. 584, 6 So. 197, 13 Am.St.Rep. 73.”
¶12From Wragg v. City of Montgomery, supra, is the following [245 Ala. 362, 17 So.2d 175]:
“We also quote the following from the case of Ussery v. Darrow, 238 Ala. 67, 188 So. 885, 889:
“ ‘We have a line of cases following Woodstock Iron Co. v. Fullenwider, 87 Ala. 584, 6 So. 197, 13 Am.St.Rep. 73, declaring a principle stated in Herren v. Beck, 231 Ala. 328, 164 So. 904, 906, as follows: “When a remainderman’s title passes out of him, but subject to his equitable right to have it reinvested or to be subjected to a lien or trust, such right and duty to sue occurs as soon as the instrument is executed,” and during the existence of the precedent estate.
“ ‘The principle is distinguishable from one which applies when a life tenant undertakes to convey the remainder, but it does not have that effect because the chain of title shows that he only has and can only convey only a life estate. A remedy under such circumstances by the remainderman to clear the situation is available but not obligatory, because the public need not be misled. Dallas Compress Co. v. Smith, 190 Ala. 423, 67 So. 289; Teal v. Mixon, 233 Ala. 23, 169 So. 477. But we are not willing to apply that principle to a situation where the records and chain of title are all such as that they not only purport to pass the entire fee and all interests, but taken alone in fact do so, and when the only matter which will create a different result is-collateral, not shown or suggested by the chain of title, nor public records judicially known, or to which the record refers. There is then an inchoate right which must be asserted to prevent the title from passing in fact as it purports to pass on its face. It resembles a cloud on a title. King v. Artman, 225 Ala. 569, 144 So. 442.’ ”
¶13It is clearly shown by the bill that it was not until July, 1945, more than 19 years afterwards, that anything at all was done or said concerning complainant’s claim. Nothing is shown to have occurred during all that time, either by spoken word or by action, in any way recognizing such claim. Certainly, it cannot be successfully contended that complainant must await the death of her mother, who, according to-complainant’s position, has the life estate, before bringing suit. Nor can it be successfully maintained that complainant’s-cause of - action “accrued” upon discovery of the alleged fraud.
¶14The circumstance that complainant, suing in equity to acquire title as remainderman, is not entitled to the immediate possession of the property, since her mother, the admitted life tenant, is still living, does not, in my opinion, stop the statute of limitations from running against her right to assert such title until the falling in of the-life estate. In the ca.se before us, complainant has no title ánd no possibility of becoming invested with one, except by suing in equity to acquire it. It is to this equitable proceeding to acquire a title that the limitation is applicable. As stated in Robinson v. Pierce, 118 Ala 273, 305, 306, 24-*352So. 984, 993, 45 L.R.A. 66, 72 Am.St.Rep. 160:
“What conceivable reason can there be for exempting a person from this rule of diligence who sues in equity to acquire an estate in remainder or reversion, any more than one suing in equity to acquire an estate in possession? His decree, when obtained, establishes perpetually his title, entitling him to maintain his action for possession whenever the event entitling him to possession transpires; and no lapse of time after recovery of the decree, and before the possessory right accrues, could affect his right to recover possession upon the happening of the latter event.”
¶15As I view it, it does not matter when complainant’s right of possession accrues, for until title in her is decreed by a court of equity she can never have a right of possession, or an action therefor, at law. As further stated in Robinson v. Pierce, supra, at pages 303, 304 of 118 Ala., at pages 992 of 24 So.:
“The suit in equity is for the purpose of acquiring am estate which will give a possessory right, enforceable by action at law, at the time which, by the effect of the grants as they are decreed to exist, such right would arise. The power of the chancellor, upon establishing this estate, on petition, to put the complainants in possession, is purely auxiliary, incidental — not the primary purpose of, nor forming a part of the equity of, the bill. The question of when or on what contingency the complainants may become entitled to possession cannot possibly concern the relief sought by the bill.”
¶16Insistence is made that § 42, Tit. 7, Code 1940, rather than § 20, Tit. 7, supra, is applicable here. Section 42 provides as follows :
“Ip actions seeking relief on ground of fraud. — In actions seeking relief on the ground of fraud where the statute has created a bar, the cause of action must not be considered as having accrued until the discovery by the aggrieved party of the fact constituting the fraud, after which he must have one year within which to prosecute his suit.”
¶17Complainant takes the position that the fraud was not discovered until July, 1945, and that, therefore, until at least one year thereafter there could be no effective bar to the suit; and that, from July, 1945, to the time of filing the bill, the time limitation for commencement of the suit was tolled because the respondents, after discovery of the alleged fraud, from year to year, recognized and acquiesced in complainant’s claim. But there is no averment showing, during the 19 years from 1926, 1945, any concealment by respondents, or either of them, of the alleged fraud, or of conduct on their part “calculated to mislead or to prevent inquiry and lull into repose”. The averments show nothing more than passiveness and mere silence on the part of the respondents from the time of execution of the deed in 1926 until actual discovery of the alleged fraud in 1945. This court, in discussing § 4852, Code 1923, now § 42, Tit. 7, supra, had this to say in Peters Mineral Land Co. v. Hooper, 208 Ala. 324, 329, 94 So. 606, 611:
“The statute referred to does not require actual notice, since a fraud is discovered within the contemplation of the law when it is readily discoverable or when a party is put upon notice thereof. Ivy v. Hood, 202 Ala. 121, 79 So. 587; Veitch v. Woodward Iron Co., 200 Ala. 358, 76 So. 124, authorities collected in Gill v. More, 200 Ala. 511, 520, 76 So. 453; Gamble v. Black Warrior Coal Co., 172 Ala. 669, 55 So. 190; Wood v. Carpenter, 101 U.S. 135, 25 L.Ed. 807. And it is established that a deed or other conveyance of land in this state becomes effective- as constructive notice from the moment of recordation. Chapman & Co. v. Johnson, 142 Ala. 633, 38 So. 797, 4 Ann. Cas. 559.”
¶18Here, the bill affirmatively shows that the 1926 deed was recorded in the County Probate Office. (Although there is no specific *353averment as to the date of its recordation, I assume, from the references in the bill to the deed, that it was placed on record shortly after its execution.)
¶19It is also stated in the Peters Mineral Land Co. case, supra, as follows:
“The provisions of Code [1923], § 4852 [Code 1940, Tit. 7, § 42], are construed to mean that mere ignorance on the part of the alleged defrauded party is not sufficient to prevent the running of the statute, but to mean ignorance that is superinduced by the fraud of the respondent in the form of active concealment, conduct calculated to mislead, or to prevent inquiry and lull into repose. Ivy v. Hood, supra; Van Ingin v. Duffin, 158 Ala. 318, 48 So. 507, 132 Am.St.Rep. 29. It is not averred that any such act, conduct, or guilty silence was employed or intervened in this case to defeat the operation of the statute.”
¶20The last quoted sentence is of peculiar application to the bill now under review. See, also, the following cases: Moss v. Davitt, 255 Ala. 513, 517, 52 So.2d 515; Fletcher v. First Nat. Bank of Opelika, 244 Ala. 98, 103, 104, 854, 11 So.2d 854; Van Antwerp v. Van Antwerp, 242 Ala. 92, 100, 5 So.2d 73; Williams v. Bedenbaugh, 215 Ala. 200, 204, 110 So. 286; Underhill v. Mobile Fire Department Ins. Co., 67 Ala. 45, 51; Porter v. Smith, 65 Ala. 169, 172; Taylor v. South & N. Ala. R. Co., C.C., 13 F. 152, 159.
¶21In the Underhill Case, supra, this court, speaking through Brickell, C. J., said:
“There is no proper averment that the ignorance was superinduced by fraud, or by more than the mere passiveness of the respondents. Ignorance of right in the party complaining, there being no more than passiveness, mere silence, on the part of his adversary, cannot be engrafted as an exception on the statute of limitations, without a destruction of its wise policy, and without an encouragement of mere negligence.”
¶22I concur in the affirmance but would base affirmance on the ground that the bill affirmatively shows on its face that complainant’s right of action is barred by the statute of limitations of ten years, § 20, Tit. 7, supra.