44 So. 410 | Ala. | 1907
The manifest purpose of the bill, before and after amendment, was to enforce the collection of the sum that complainant’s intestate’s estate had to pay the bank for the benefit of the estate of George W. Howell, deceased, and to subject the land of the said estate to the payment thereof. The amendment seeks an equitable subrogation to the lien under the decree in favor of the Kirk heirs, which is but an incident to the collection of the debt, but subjecting the land to the payment of same, and the amendment was not a departure from the original bill. It appears from the bill that the money procured from the bank, upon the indorsement of complainant’s intestate, T. F. I-Iowell, and which was paid by him as his administrator, was to be procured for the purpose of paying off the decree against the estate of George W. Howell in favor of the Kirk heirs, and was so used. It might be that under the authority of Motes v. Robertson, 133 Ala. 630, 32 South. 225, T. F. Howell became the equitable assignee of the decree paid with money procured upon the strength of the credit and which had to be paid to the bank out of his estate, and that he was not a mere volunteer, aside from the fact that he owned an interest in the property upon which the decree operated as a lien; but this we need not decide, as T. F. Howell was a legatee under the will of George W. Howell, and owned an interest in the land covered by the lien which the money, in effect furnished by him, was used to discharge.
The bill does not aver when the Kirk' decree was affirmed by this court, which would be the period from which the statute of limitations would commence, but does show that it was filed within 20 years after the rendition of the decree by the chancellor, and was filed in time, adopting the rendition of that decree as the period of computation. The bill was not subject to the demurrers proceeding upon the theory of laches or the statute of limitations. — Subdivision 3, § 2794, Code 1896.
The chancellor erred in sustaining the demurrers, as well as the motion to dismiss for want of equity; and the decree is reversed, and one is here rendered overruling the same.
Reversed and rendered.