40 So. 515 | Ala. | 1906
The bill as amended asserts against the heirs at law of Susanna Wilson, deceased, a claim for a breach of a contract to defend .title, much*, by her in the sale of the pine timber growing upon the lands which had been set apart to her for dower and homestead, as the widow of her deceased husband, Alston Wilson. The claim is rested principally upon the. allegation that some of her heirs* all being made parties defendant to the. bill, are insolvent, and that as heirs and distributees of their mother they had received and divided among themselves the money paid for the timber, as well as all her other property. In order to reach, for the satisfaction of the decree sought by complainant,
It is conceded — indeed, it is alleged in the bill — that the title of the purchaser at the administrator’s sale is paramount and superior to any right of the complainant growing out of the purchase of the growing timber from the dowress and life tenant. Her interest existing only for life, her conveyance could not impair the remainder. —Smith v. Cooper, 59 Ala. 494. Nor could she commit or authorize the commission of waste. — Alexander v. Fisher, 7 Ala. 514. The administrator do bonis non, therefore, had the clear legal right to seek a sale for division among the heirs of Alston Wilson of the lands in question, and such sale carried the standing timber, constituted a portion of the realty. Moreover, the right of his heirs to .receive the proceeds of said sale was entirely independent of any right they had to participate in their mother’s estate after the payment in due course of administration of all debts and demands against her, and had no relation whatever to any liability for the benefit of her creditors resting upon them in respect of the division among themselves, without administration, of their mother’s money and other property. If the covenant of Susanna, Wilson was broken during her life, the complainant had a remedy by action at law against her for the breach. If the covenant was broken after her
Presenting, therefore, no claim which could be asserted in equity against the heirs of Susanna Wilson in the manner attempted by this bill, the bill must fail for want of any substantial support. • Obviously, therefore, the court of chancery could not, by a species of equitable, attachment or garnishment or by an injunction against distribution, seize and hold in gremio legis the moneys of the defendants, coming to them as heirs of their father, to satisfy a decree which the complainant could never obtain. Furthermore, “an estoppel on the part of the mother shall not bind the heir when he claimeth from the father.” Coke, Litt. 365b. An heir claiming an independent title in himself is not estopped to assert it by the mere1 force of covenants of his ancestor. — Russ v. Alpaugh, 118 Mass. 369, 19 Am. Rep. 464.
The principle of law invoked by appellant, that one should not be permitted to convert property into money by a sale, and, the conveyance failing to pass title, hold on to the purchase money and at the same time take back
Affirmed.