112 Ala. 412 | Ala. | 1895
Thomas N. Allison, as the administrator of the estate of James L. Allison, deceased, under order of the probate court, sold the lands of said estate for the purpose of division among the heirs at law. The sales ■were made for part cash and part on time. The administrator, himself, purchased one tract of land, reported the sales, and the same were confirmed by the court. In June, 1891, a final settlement was made, the administrator charged himself, or was charged, with the proceeds of the sales, including the price of the land purchased by him, and decrees were rendered in favor of the complainants and other heirs of the estate. After the settlement was concluded and on the same day, the
The bill alleges- that the funds of the estate, other than the purchase money due from the administrator for the lands purchased by him were applied in pajnnent of debts, expenses of administration and in making payments to the heirs and that the aggregate amount of the decrees rendered on final settlement, constitutes and is the balance of the purchase money due from the administrator. Appellant Bogart claims title under a mortgage executed by Allison in May, 1892, to secure an indebtedness due to him, and the appellants, Washington and Cowan, claim liens under judgments filed and registered in the office of the judge of probate. Thos. N. Allison died intestate December 18th, 1893, and appellant Bogart is his administrator.
Demurrers were interposed to the bill, some of which were sustained, and the bill was amended. To the bill as amended, the same and other demurrers were filed all of which were overruled, and from the decree overruling the same, this appeal is taken.
The statute carefully guards against a conveyance of the title to lands sold by an administrator, under order of the probate court, until the entire purchase money has been paid. The payment must be judicially ascertained and conveyance ordered by the court, according to prescribed methods of procedure conferring upon the court jurisdiction of the matter. Until such ascertainment and order, the title of the heirs remains as a security of the purchase money remaining unpaid, enforceable, in a proper case, in a court of equity. These principles seem to be not controverted by counsel. Their briefs collect the authorities bearing upon them.
In the present case, the administrator was, himself, the purchaser at his own sale. Without paying to the heirs, or into court for distribution amongst them, the purchase money, he made, regularly in other respects, final settlement of his accounts in the probate court, and thereupon charged himself, without objection, or was
Against the relief sought, the defendant interposes the action of the probate court confirming the purchaser’s report of payment of the purchase money and ordering ■titles to be made. Proceedings of that character, instituted by an administrator, in his own behalf, as purchaser, have been well defined by past decisions of this court, as being essentially without the administrator’s representative character, and when conducted without notice to the heirs are purely ex parte, possessing no legal validity — conferring no jurisdiction of the persons of -the heirs upon the probate court. — Anderson v. Bradley, 66 Ala. 263; Ligon v. Ligon, 84 Ala. 555; Dugger v. Tayloe, 60 Ala. 504. According to the bill, the defendant Bogart, as mortgagee, had notice of the complainants’ lien, at the time of the execution of the mortgage, as well as the constructive notice afforded by the infirmity in the chain of title. — Ketchum v. Creagh, 53 Ala. 224. The other defendants, judgment creditors, do not occupy as high ground, even, as the mortgagee. The order of the court to make titles cannot, therefore, be regarded for any purpose.
But, it is insisted, the complainants waived their security, and are estopped by charging, or suffering the administrator to be charged, with the purchase money on his final accounting, wherefore no notice to the heirs was necessaiy to the validity of the order for titles. The proposition, in effect, is that the waiver and estoppel bar the relief sought, and the order to make titles is not a matter of importance. If complainants are estopped by the fact that the purchase money was charged on the final settlement, all consideration of the case may rest at that point. The defendant in such case need not seek to uphold the validity of the order to make titles and the conveyance executed in pursuance thereof, since we are not now, necessarily, concerned with legal titles.
In support of the alleged estoppel we are referred to
In the Ligon and the present cases, ths administrators, themselves, were the purchasers, and reported payment of the purchase money and asked for titles to
• It inevitably follows, upon these principles, that, in the latter case, the administrator asking for a conveyance to himself, as purchaser, in order to prevail, must show that the demands of the heirs for the purchase money have been satisfied.
We can conceive of no element of satisfaction, -either ■actual or by virtue of equitable or judicial estoppel, in the mere fact that on a final settlement between the administrator and the heirs he charges himself, or is
The position that complainants, by charging the administrator, thereby elected to take independent security, to-wit, the liability of the sureties on the administrator’s bond, cannot stand any legal test which can be applied to it. That security existed as soon as the bond was executed, and yet we have seen how carefully the statute saved the legal title in the heirs, also, for their security, until it should be judicially ascertained, in a proceeding by which they were bound, that the purchase money had been paid. Suppose there had been no settlement, and hence, no judicial ascertainment of the administrator’s liability, as purchaser, for the purchase money, and the heirs were proceeding by bill in equity to enforce their security against the land, if there is any merit in the proposition that the security was waived
We think, uj)on the averments of the bill, complainants are entitled to relief.
Affirmed.