Moore v. Alexander

81 Ala. 509 | Ala. | 1886

STONE, C. J.

— There are many reasons why the estate of William Hooks should be fully and watchfully looked after in the present litigation, by some one having rightful access to his papers, and responsible for the faithful administration of his estate. Taking the averments of the bill to be true, Hooks in his lifetime purchased the lands in controversy, and paid about three-fourths of the purchase-money. Title was retained by Alexander, the vendor, and this bill is filed to enforce his lien as a vendor. His right to relief depends on his ability to show there is purchase-money unpaid, and the amount of it. In taking the account, it is meet, proper and necessary that the estate of Hooks be represented, not as a matter of form, but by a living, active, informed representative. Such has been our uniform ruling. Hall v. Wilkins, 4 For. 245 ; Erwin v. Ferguson, 5 Ala. 158 ; Dooley v. Villalonga, 61 Ala. 129; Gardner v. Kelsoe, in MSS. — Ala.

A second reason is, that if the property against which the lien is enforced does not bring enough to satisfy the entire demand, the decree has the force and effect of a judgment, and execution may be issued thereon for the collection of the ascertained balance, when so ordered by the court. Code of 1876, § 3i¡08.

A further reason exists in this and all similar cases. If the proceeds of sale leave a surplus after satisfying the lieu debt, and other liens, if there be any, that balance should be applied to the exemptions, if there be such, and next to the creditors, if any, and then to the next of kin, or devisees, as the case may be. We adhere to our former rulings, that an administrator with general powers is a necessary party in this cause. — Dooley v. Villalonga, 61 Ala. 129 ; Bell v. Hall, 76 Ala. 546.

There are cases in which an administrator ad litem meets all the wants of the litigation. — Clark v. Knox, 70 Ala. 607 ; Gayle v. Johnson, 72 Ala. 254; Code of 1876, § 2625.

We are not prepared, to say the creditors were necessary parties in this suit. There had been a decree of insolvency, and the personal representative represented the creditors.

The demurer to the amended bill, as the pleadings now appear, ought to have been sustained.

The decree of the chancellor is reversed, and the cause remanded for further proceedings in accordance with this opinion.