Massey v. Modawell, 73 Ala. 421

Massey v. Modawell

73 Ala. 421 | Ala. | 1882

STONE, J.

— According to the averments of the 'bill in this case, and according to the proof made, the sale of the land, and conveyances of title, made by Modawell, were without any authority whatever. The will gives no authority to sell, except for final division or distribution, which can only take place, after the youngest child becomes of age, or marries. The will gives to each child, as they severally attain to lawful age or marry, a specified sum of money: It then contains this clause : “ In the final division of my estate, it is my will that all my property, both real and personal, be sold on a credit of twelve months, purchasers giving good personal security.” This is the only authority to sell lands found in the will. The bill shows that the lands were sold when most of the children were minors. On what terms sold we are not informed. Nor is it anywhere shown whether the sale was public or private. Whether the one or the other, the sale was void, and conveyed no title. According to the averments of the bill, the legal title to the lands remained in the heirs, and there was no obstacle to a recovery by them in an áction at law, unless the statute of limitations interposed a bar as to sqme of them. Tyson v. Brown, 64 Ala. 245.

The bill avers that in 1861, Modawell, the administrator in chief, made a settlement and resigned. The bill then, in insufficient averments, charges irregularities in his settlement, and contains this clause: “And your orators charge that in the said settlement by W. B. Modawell, there was error of law and fact to the injury of your orators, without any fault on their part, in this, that the probate court had no jurisdiction to settle a matter of .trust, and in this, that the proper notices as required by law were not given, all the parties were not before the court, and the minors were not represented by a guardian ad litem, and that the decree and settlement show manifest error on their face.” No part of the record of the probate court is found in this record, and we are left to form conjec*425tures from the vague averments copied above. The bill seeks to recover the lands as they are, and not the proceeds of the sale made by Modawell. Hence, the bill can not be construed into an attempt to make him account for the proceeds of the land. The complainants can not have both the land and the money for which it was sold. If they elect to charge Modawell with the money, they thereby ratify the sale, and lose all right to the land. — Elliott v. Branch Bank, 20 Ala. 345. And the bill fails, to show any particular sum of money derived from ¡personal assets. In fact, it fails to show any money or other personal assets received by him, and not accounted for. This feature of the bill is fatally defective, in that it does not show the complainants have sustained any injury, or can recover any thing from Modawell. Errors of law or fact, to sustain a bill of this class, must be clearly pointed out, and there must be enough in the bill- to show that complainants have suffered injury. There must be injury to the party complaining, and the record must show it. — Code of 1876, §§ 3837-8; Boswell v. Townsend, 57 Ala. 308; Bowden v. Perdue, 59 Ala. 409.

The will in the present case directs that when the youngest child becomes of age or marries, the entire property, real and personal, was to be sold and converted into money. This was an equitable conversion of .the real into personal property, with all the incidents of personal property. — 1 Sto. Eq. Jur., § 790 et seq. But this equitable conversion.could not and did not take effect, until, by the terms of the will, the land could be sold. This, as we have seen, could not be, until the youngest child arrived at age, or married. Till then it was realty, with all the rights and incidents which attach to lands. The title was in the heirs by descent, and until the land was sold under the power in the will, or wanted and claimed by the personal representative, to be sold for distribution under the will, they, the heirs, could recover the land in a suit at law. Being at that time, in equity as well as at law, real estate, the heirs at law had no right or pretense for going into equity to recover the possession. Nor can we perceive how the heirs, or'any number of them, and the personal representative can assert a common right to the land. The heirs can only claim by descent. The personal representative can only claim in trust. When the right of the latter accrues and is asserted, the right of the former as heirs to the land, as land, ceases. So, it is-improper for them to sue jointly. It is, therefore,' not necessary that we should inquire whether the administrator, if he had sued alone as such, could maintain a bill for the purpose of selling the land, and completing the administration of this estate. The time for such sale had not andved, and he did not *426sue alone. Complainants claiming a common recovery must show a common right; and failing to do so, the suit must fail. .Jones v. Reese, 65 Ala. 134. N. L. Massey, as an individual, can recover only as an heir at law, and upon his legal title descended. And he can recover only his individual interest. As administrator, when the proper time arrives, if not barred, . he can recover the entire property, for the purpose of its sale, and distribution of the proceeds, pursuant to the directions of the will. — Fambro v. Gantt, 12 Ala. 305; Ikleheimer v. Chapman, 32 Ala. 676. The two interests are antagonistic and incompatible. — McKay v. Broad, 70 Ala. 377.

It results from what we have said, that the chancellor did not err in dismissing complainant’s bill.

It is contended for appellant that the chancellor should not have dismissed the bill absolutely, but should have given leave to amend. The decree of dismissal in this cause was rendered in vacation, and, under our rulings, it was error to dismiss, without offering complainant an opportunity to amend. — Bishop v. Wood, 59 Ala. 253 Kingsbury v. Milner, 69 Ala. 502. We can not affirm that it is impossible to amend this bill so as to give it equity.

Reversed and remanded.