60 Ala. 504 | Ala. | 1877
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.
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
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.