61 Ala. 530 | Ala. | 1878
Lead Opinion
We think the weight of the testimony establishes the proposition that Mrs. Barber, then Elinn, paid the thousand dollars through her brother, Hereford, not in part payment of her deceased husband’s purchase, but in part payment of an original purchase made by herself. We think the testimony also shows that the note of Watson Elinn, payable to Bunberry Flinn, his father, was given as the purchase-price of the land described in the bill. Long before the purchase by Mrs. M. Louisa Flinn, now Mrs. Barber, and in the life-time of Watson Flinn, her former husband, Bunberry Flinn sold and conveyed the lands to Watson Flinn, and thus divested himself of the legal title thereto. He retained only an equitable right to enforce the vendor’s lien. Having only such equitable right, he could not sell and convey such a title to Mrs. Barber; and he had no power or authority to contract with her for a sale and conveyance of the land. The testimony informs us that Mrs. Barber has sued Bunberry Flinn for the thousand dollars thus paid him, and has recovered a judgment therefor. This leaves the purchase-money note, $3,200, given by Watson Flinn, wholly unpaid, save the credit of eight hundred and ninety dollars. The bill, as at present framed, admits the payment on the note of the eight hundred and ninety dollars, and also of the one thousand dollars, paid by Mrs. Barber. Two defenses to this bill are relied on: First, that before the bill was filed, the note of $3,200 was barred by the statute of limitations of six years. The ruling of this court has uniformly been that a vendor of lands, even though he makes a
We hold that the vendor’s lien was not destroyed by the six years statutory bar of the debt.
The second defense relied on is, that the claim sued on was not presented to the administrator, or filed in the Probate Court, as a claim against the estate, within eighteen months after the grant of letters of administration. Bun-berry Flinn, the payee, was the administrator of the estate, and the record shows that this claim was not brought into the administration. The estate was in fact insolvent, and the testimony tends to show that the entire assets were required to pay the debts of the estate that were brought in and allowed. It is thus shown that no part of this debt, other than the $890, has been paid. Without intending in this case to decide whether an administrator need or can present a claim against the estate he represents, we are satisfied his failure to do so does not bar his equitable lien as a vendor. — Locke v. Palmer, 26 Ala. 312; Inge v. Boardman, 2 Ala. 331; Duvall v. McLoskey, 1 Ala. 738.
The decree of the chancellor is reversed, and the cause remanded, to be proceeded in according to the principles of this opinion.
Dissenting Opinion
dissented, referriug to his dissenting opinion, in Bizzell v. Nix, 60 Ala. 284.
