McClellan v. McClellan

84 So. 750 | Ala. | 1919

It is a well-recognized rule of pleading that cocomplainants must have a common interest in the subject-matter of the suit in order for both to be entitled to relief, though it is not essential to the unity of the bill that each complainant or defendant shall have an equal or coextensive interest in the entire subject-matter of the litigation. Michie's Dig. vol. 5, pp. 536-537.

The bill in the present case is filed by the complainant as personal representative, and also as sole heir, of her deceased husband. It sets up a conversion by her of the personal property of the estate through the fraud and misrepresentation of the respondent, but, instead of repudiating the purchase of the land, confirms the same by seeking to declare a resulting trust and a correction of the title. She would unquestionably be permitted to proceed as administratrix for the purpose of redressing the wrong practiced upon her as such, but the heir would not be bound by the conversion or reinvestment of the money of the estate in land, or by a decree requiring the correction and execution of a proper conveyance, unless she elected to do so as party to the suit, or otherwise. Therefore, in order to fully adjust the controversy and give finality to the decree, there was no impropriety in the joinder of the complainant as the heir for the purpose of confirming the investment of the money in land and getting the title made to her individually, while as administratrix she is, of course, interested in protecting the estate against the result of the fraud practiced upon her as such. It is true that in this case the complainant is the sole heir of her deceased husband, and the funds were not subject to the claim of his creditors, but this does not alter the general principle that an heir is not bound by a conversion or devastavit of the administrator unless ratified or confirmed.

The case of Massey v. Modawell, 73 Ala. 421, is unlike the instant case. It was there held that a suit involving the right to recover land, in law or equity, should be by the heir alone. Here we have a bill, not to recover land, but to correct or redress a misapplication of the money of the estate by the personal representative joined by the heir who is willing to ratify the investment and procure a good title to the land.

The decree of the circuit court is affirmed.

Affirmed.

SAYRE, GARDNER, and BROWN, JJ., concur.