Allen v. Clarke, 106 Ala. 600

Allen v. Clarke

106 Ala. 600 | Ala. | 1894

McCLELLAN, J.

— It is very clear on the averments of the present bill that the purchase money note, executed by Catherine Anderson to S. S. Anderson in 1869 was barred, m respect of the promise to pay, by the statute of limitations-of ten years, and, in respect of its lien upon the land sold, by the lapse of twenty years when this bill was filed. It does not appear that the respondents to the bill have estopped themselves to set up the statute and staleness of demand. This defense they now make by demurrer to the bill; and it should have been sustained by the chancellor.

If Mrs. Bullock and Jessie and Dona Anderson were parties to the final settlement of the estate of S. S. Anderson in'the chancery court and took this note charged with complainant’s debt against the estate under the decree there rendered, they would now be estopped to defeat complainant’s demand by pleading staleness or the statute of limitations : they could not take under the note except in recognition of the charge put upon it by said. decree. But the bill does not show that they were parties to that proceeding and decree.

If they were such parties, and thus estopped, the *604executor of Catherine Anderson would still be under a duty to plead the statute and staleness against complainant’s demand which is sought to be enforced by subjecting the proceeds of' land of the estate sold by him, (Teague v. Corbitt, Admr., 57 Ala. 529), unless the said Mrs. Bullock, Jessie and Dona Anderson are the sole heirs and distributees of both the estates — Catherine Anderson’s and S. S. Anderson’s. It does not appear whether these parties are the only heirs and distributees or not.

The assignments of demurrer which went to the staleness of said purchase money note as a claim against the estate of Catherine Anderson should have been sustained. The other assignments are without merit.

Reversed and remanded.