46 Ala. 191 | Ala. | 1871
— The case made by the bill is, that Edward L. McIntyre was the attorney of the executors of Solomon Siler, deceased, in their administration and final settlement of his estate. He had borrowed money from them, and secured its payment by a mortgage on a house and lot. They were indebted to him for his services. On their final settlement they charged the estate with the amount of these services, and credited McIntyre’s debt with a portion of the amount allowed them. They agreed with him that the entire allowance should be so credited, but in the distribution of the estate by commissioners his note and mortgage were transferred to one of the distributees, Mary A. Siler, afterwards Mrs. Pickett, and the credit was not made. The administrator of Mrs. Pickett, who was about to foreclose the mortgage, is made a party defendant, together with the surviving executors and the heirs-at-law of those who had died. The prayer is, that the credit allowed the executors be set aside, and that bis debt be credited with the amount he may be entitled to receive, and for an account between him and the executors ;
The bill was dismissed for want of equity, and misjoinder of parties, with leave to amend. The amended bill introduced Lemuel B. Soles as a party complainant with McIntyre, and propounded his interest, the substance of which was, that he had originally sold the mortgaged property to McIntyre, and had. purchased it back agáin for something more than the purchase-money, which had never been paid, and was in possession. This bill was also dismissed for the same reasons as the other.
The claim of McIntyre was upon the executors, and not upon the estate of Siler. His debt was assets of the estate. When the executors charged the estate with the amount of his claim, it was a, preclusion of any possible recourse upon it in favor of McIntyre, even if he had otherwise had such a right. The agreement between him and the executors was not executed by them, but they had, by their action, chosen to be accountable themselves to him. Jones v. Dawson, 19 Ala. 672-78.
The amended bill did not help McIntyre’s case by setting up the claim of Soles as a prior incumbrancer. It made a new case, inadmissible as an amendment, besides being subject to the objections of misjoinder of parties and multifariousness.— Winter v. Quarles, 43 Ala. 692.
The decree is affirmed.