61 Ala. 472 | Ala. | 1878
The heirs of Robert D. James, who are made defendants to this suit, do not, in their answers, admit the existence or justness of the claims sought to be recovered in this proceeding, and the result of this is, that the onus was cast on complainant of proving his demand. The only evi~
But the suits at law being against Francis B. James, one of the devisees under the will, and judgments recovered against him, the question, as to him, stands on a different footing. Although the suits at law were against him and Boykin in their representative capacity, yet, when judgments were recovered, they authorized executions against them to be levied of the goods of their testator, to be administered; and upon return of such executions, no property found, executions could be issued thereon, de bonis propriis. — Code of 1876, § 2620. We hold that these suits and judgments ascertained the existence and amount of the debts, as against Francis B. James. This renders it necessary that we should determine another question, -which has been very fully argued.
These suits were brought, and judgments recovered in the Circuit Court of Clarke county; the suits being severally in favor of Pleiades Brown, John T. Taylor and Solomon Nordlinger, and against SamuelT. Boykin and Francis B. James, as executors of Robert D. James, deceased. These suits were founded on claims against Robert D. James, testator; but the judgments were entered, to be levied of the goods and chattels, lands and tenements of said Samuel T. Boykin and Francis B. James. Francis B. James was one of the heirs, and a devisee under the will of Robert D. James. The bill avers that Pleiades Brown purchased, and became the owner of the judgments in favor of John T. Taylor and Nordlinger. On these judgments, so entered de bonis propriis, Brown sued out executions, and under his directions, the execution in his own favor, and that in favor of Taylor were levied on lands which Robert D. James died seized, the lands were sold by the sheriff, purchased at the
The bill alleges there are no personal assets of the estate of Robert H. James, and that the executors and their sureties are insolvent. Robert H. James left a widow and three children, devisees and legatees under his will, and all of them, save Mrs. Boykin, a married woman, are obligors on the executorial bond. The bond is in the penalty of three hundred thousand dollars, and bears date in 1860. The inventory and appraisement show a very valuable personal estate, consisting largely of slaves, but several thousand dollars of other personal property. These, it appears, were divided off' long before the present bill was filed. We think the testimony establishes the insolvency of Boykin, and that the other bondsmen were without property, except the lands sought to be condemned, which they had acquired under testator’s will.
It is manifest that the judgments first rendered in these causes against James and Boykin, to be levied de bonis propriis, were not supported by the pleadings, and were grossly irregular. The Circuit Court did right in correcting them; and if there had been an appeal from them to this court, they would have been here corrected at the costs of the appellant. — 1. Brick. Dig. 81, § 178, et seq. It is contended for appellants in this case that inasmuch as the plaintiff Brown procured the executions on the two judgments — that in his own favor, and that in favor of Taylor — to be levied on the lands, and himself became the purchaser — thus satisfying said two executions — that works a satisfaction of the claim, although Brown took nothing by his purchase. If there be nothing in this case to take it without the operation of the general rule, the position is well taken. — Me
Amendments of judgments nunc pro tune, take effect as of the date when the original judgment was rendered. These judgments must be treated as if originally rendered against James and Boykin as executors of Robert D. James, to be levied of the goods and effects of their testator, in their hands to be administered. The title to personalty only was in them, and that alone was liable to process properly issued, and pursuing such judgments. It could furnish no warrant for the seizure and sale of lands of the testator, the title to which had vested in the heirs or devisees. We have then the case of a judgment against representatives in their representative capacity, execution against them, so framed as that it could only operate against them personally, and, under it, lands of their testator levied on and sold; levied on and sold, not as the property of Francis B. James and Samuel T. Boy-kin, but as the property of R. D. James, deceased. The deed conveyed only such title as James and Boykin, as executors, had in said lands. As executors, they had no title whatever which could be levied on and sold; and so the whole proceedings show on their face that no title whatever was conveyed thereby. They did not create any cloud on the title which had descended, nor did the deed convey, nor assume to convey any title which might vest in James and Boykin personally. Being on its face utterly inoperative, we pronounce the deed, and with it the sale under which it was made, without any legal effect whatever, and void. — McClellan v. Lipscomb, 56 Ala. 255. We hold, therefore, that
Reversed and remanded.