Dugger v. Tayloe, 60 Ala. 504

Dugger v. Tayloe

60 Ala. 504 | Ala. | 1877

BRICKELL, C. J.

The general rule in a court of equity is, that neither creditors, nor distributees, nor legatees, can maintain a bill against debtors of an estate, to subject debts they may owe to the satisfaction of their demands. There is a want of privity between them and the debtors, and it would introduce confusion' in the administration of the assets, and displace the power of the personal representative. There are exceptions to the rule; as where there is collusion between the debtors and the personal representative; or where be is insolvent, and there is just apprehension of loss, if he is permitted to collect them; or, as is said by Chancellor Kent, in Long v. Majestre, 1 John. Ch. 306, “where there is some other special case not exactly defined.” — 1 Dan. Ch. Pr. 322-24; Story’s Eq. Pl. §§ 178, 227, 514.

The averments of the present bill are not of collusion between the personal representative and the debtor, but of fraud practiced on her, and misrepresentation to her by the debtor; whereby she was induced to part with the evidences of the debt, and to accept in payment Confederate treasury-notes, and Confederate bonds; and of her insolvency, and the insolvency of her sureties. Conceding that the bill discloses a fraud and misrepresentation which will avoid the payment, the case may be regarded as an exception to the general rule, and the complainants permitted to recover of the debtor the debt the administratrix could recover.

2. The demand preferred is against Tayloe, and the relief prayed is to subject to its satisfaction the lands he acquired from Bocock. The material question is, whether there is a debt due from Tayloe to the administratrix' — a debt which would have been assets in her hands for administration, and for the recovery of which she had a remedy, legal or equitable. The question must be answered negatively. Tayloe entered into no contract with the administratrix, nor had. *518she at any time any evidence of debt on which he was liable as principal debtor. The contract into which he entered was with Bocock: whatever were its duties, they were owing to Bocock alone; and whatever were its benefits, wex-e derived from him. The corresponding obligations of the contract rested on Bocock, and not on the administratrix, who in every respect was a stranger to it.

If it be said, it was Bocock’s debt, which was fraudulently paid to the administratrix, and that the complainants have an equity to subject to its payment, pro tanto, the lands Tayloe acquired from Bocock, the purchase-money of which was the consideration of the debt; the answer is, the release to Bocock, executed by complainants, was an extinguishment of the debt. The reservation in the release is not of a right to proceed against the lands purchased by Tayloe, for any part of the debt contracted by Bocock. Such a reservation would be inconsistent with, and repugnant to the intention of the parties, as expressed in the release, to acquit Bocock from all liability on account of the debt contracted in the purchase of the lands, and to quiet the title to the lands as divided between him and the complainants. Tayloe was a purchaser from Bocock, and the bill does not negative his payment of the purchase-money. If the complainants could rightfully proceed to subject the lands he purchased to the satisfaction of the purchase-money owing by Bocock, axx equity would arise at once in his favor to subject first the lands with which Bocock had not parted, includixig the laxxds he had conveyed to the complainants.—M. M. D. & M. Ins. Co. v. Huder, 35 Ala. 713, It is maxxifest, the intexxtion of the parties in the execution of the release would be thereby defeated.

The reservation in the release is not of a right to proceed against the lands purchased by Tayloe, for any part of the debt of Bocock. It is of a right to assert against Tayloe the title of the complainants to the lands he had purchased. How far this reservation can operate, is not now a material question, and we express no opinion in reference to it. If its operation as claimed by the complainants was admitted, their title to the lands is purely legal, and the legal remedy is adequate. The decree of the Court of Probate, declaring Bocock had paid the purchase-money, is simply void, not fraudulent, if the facts are as stated in the bill. Being void, the conveyance executed in pursuance of it is a mere nullity, and is not an impediment to a recovery on the legal title at law.

Proceedings for a sale of lands by a personal representative, in the Court of Probate, are in fieri, until the court ren*519ders a decree declaring payment of the purchase-money, and directing a conveyance to the purchaser. The title of the heirs or devisees is not divested until conveyance is executed.—Doe, ex dem. v. Hardy, 52 Ala. 291. When the purchase-money is fully paid, the conveyance of title may be decreed on the application of the personal representative, or of the purchaser. — Code of 1876, §2468. The proceedings are in rem, and not in personam, against the heirs or devisees. The jurisdiction of the court having attached, notice to the heirs, of the application for a decree of conveyance of title, is not essential to its validity. But, if the application is by the purchaser, notice to the executor or administrator is essential, and a decree rendered without it is void. If the fact on which the decree rests, and which it must recite, is true, the personal representative loses all right to maintain an action at law, or suit in equity, for the recovery of the purchase-money, and he becomes chargeable with it in his representative capacity as assets. The statute is silent as to notice; but notice of any judicial proceeding, which is to deprive a party of rights, and impose on him liability, is essential, and is implied from the very nature of the proceeding, though it may not be expressed in the statute which authorizes it. It would be unreasonable to suppose the statute contemplates an ex^parte proceeding by the purchaser, whose interest it is to discharge himself from liability and obtain title to the lands.—Brown v. Wheeler, 3 Ala. 287; McCurry v. Hooper, 12 Ala. 823; Eslava v. Lepretre, 21 Ala. 504; Shiver v. Lynn, 2 How. 43; Hollingsworth v. Barbour, 4 Peters, 466; Lamar v. Gunter, 39 Ala. 324. The case of Dugger v. Tayloe, 46 Ala. 320, announcing a different principle, is overruled.

The decree declaring the payment of the purchase-money, made without notice to the administratrix, being void, and not an obstacle to a recovery by the complainants at law, on their legal title, the result is, in no one of its aspects has the bill equity, and the decree of the chancellor dismissing it must be affirmed.