49 Ala. 450 | Ala. | 1873
— The appellees filed their bill to enjoin the appellants, administrators with the will annexed of Gotlieb Breitling, from prosecuting an action of ejectment against them, for the recovery of lands which had belonged to the decedent; and to obtain the specific performance of a contract for the sale of the lands, made between the testator and
1. It is well settled in this State that the individual indebtedness to an estate of one who afterwards becomes its administrator, is chargeable to him in his representative capacity, on the ground of presumed payment, from the inability of a person to sue himself, or the absence of any necessity for so doing. This is so, without reference to the insolvency of the administrator, and the harsh and unjust consequences to his sureties. Whitworth’s Distr. v. Oliver, 39 Ala. 286; Whitlock v. Whitlock, 25 Ala. 543; Bogle v. Bogle, 23 Ala. 544; Purdom v. Tipton, 9 Ala. 914. In this case, Alfred Breitling’s indebtedness to his father’s estate, on account of this land, was charged to him as executor, and executions against him and his sureties have been returned with partial satisfaction. There is not so, much severity in this application of the rule, as he undoubt
2. The complainants have entitled themselves to a specific performance of the contract, to some extent. They are in possession, and a large portion of the purchase money has been paid. Brewer v. Brewer & Logan, 19 Ala. 481; Cumming's Heirs v. Gill’s Heirs, 6 Ala. 562; Hayes v. Hall, 4 Port. 375; Meredith v. Naish, 3 Stew. 207.
3. The estate of Gr. Breitling is solvent, and therefore the ejectment suit of the administrators, if successful, would enure to the benefit of the legatees. The most of these legatees, as sureties on the executor’s bond, are liable to pay the balance of the purchase money. If they were parties to the ejectment suit, they could not recover, on the ground that their interest in the land, at least, had been paid for. But those distributees who are not sureties, have a claim upon this property for the payment of whatever may be yet due of the purchase money. The vendor’s lien, for instance, is not released without payment, or the consent of the parties. However liable for, and chargeable with, Alfred Breitling’s individual debt, he, as executor, and his sureties, may be, it cannot be held that the portion of the debt which cannot be recovered out of them is extinguished by the presumed payment, to the release of any other security held for its payment. If another had been jointly liable with him on his purchase, who did not become executor, and was abundantly able to pajq it could scarcely be claimed that he was released by the presumed payment. Yet he would be, if there was a legal payment. ' The distributees who are not entangled in the transactions cannot be divested of the legal title which is in them, without some provision for the payment of their demands. The suggestion of the chancellor, that they may be compensated by taking from the shares of the distributees who are sureties, on the distribution of their ancestor’s estate, may not be practicable. The latter may have aliened their interest, or consumed or incumbered it. We cannot remit them to that chance, without hearing them on it. The present bill does not ask it. The question is not in issue now.
But we see no good reason why the complainants may not have their injunction perpetuated, and a specific performance decreed, on payment of the balance due on the land. Perhaps their right might go farther, and subject the distributive shares of the surety distributees, in the hands of the administrators, to the payment of the balance, if no other person’s right or equity intervenes. Possibly, the administrators might be required to make a deed to the complainants, which should contain the reservation of a lien in favor of the unembarrassed
The decree is reversed, and the cause remanded.