Morgan v. Casey, 73 Ala. 222

Morgan v. Casey

73 Ala. 222 | Ala. | 1882

SOMERYILLE, J.

— The action is one of ejectment for certain lands belonging to the estate of Thomas White, deceased, who died in the year 1841. The plaintiffs were appointed administrators de bonis non in the year 1875, and sue in their representative capacity to recover the lauds for the purposes of administration. The defendants claim the lands under a purchase made by one Stewart, from whom they claim to derive title, this purchase having been made in the year 1863, at an executors’ sale effected under an order of the probate court by George W. and William O. White, who were the executors of the last will of the decedent, Thomas White, having been appointed and qualified as such in the year 1843.

It is first insisted that the plaintiffs can not recover because *225it does not affirmatively appear from the record that there was a vacancy in the administration when they received their appointment by the probate court in 1875 — there being no evidence that their predecessors had died, resigned, or been removed. It is true that unless there was such vacancy, the second appointment would be void, and the plaintiffs could derive no power to sue under the authority of their letters of administration. — Rambo v. Wyatt's Adm'r, 32 Ala. 363; Nelson v. Boynton, 54 Ala. 368. But the rule has often been announced, and is now well settled, that when the probate court exercises the power to appoint an administrator die bonis non, it is always to be presumed prima facie, on collateral attack, that a vacancy existed, unless it affirmatively appear to'the contrary. The fact being jurisdictional, and its existence necessary in order to authorize the coxirt to exercise the power of appointment, it will be presumed on appeal in order to sustain the validity of the proceeding in question. — Ikelheimer v. Chapman's Adm'r, 32 Ala. 676; Cray's Adm'r, v. Cruise, 36 Ala. 559; Bean v. Chapman, 62 Ala. 58; Burke v. Mutch, 66 Ala. 568; Chappell v. Williamson, 49 Ala. 153; Sims v. Waters, 65 Ala. 442.

» The power and authority of a personal representative over the lands of a decedent .are well defined by our statutes, and the decisions construing them. lie may generally, whether the estate he represents be solvent or insolvent,, maintain ejectment, or a real action in the nature of ejectment, for the recovery of the lands of his testator or intestate. — Code, 1876, § 2588; Russell v. Erwin's Adm'r, 41 Ala. 292; 1 Brick. Dig. 625, § 6. This right is referable to, and based upon his statutory authority.to rent the lands of the estate ; to sell them under the order of the probate court to pay the debts of the decedent; and to sell them for distribution among the heirs or devis’ees. — Code, 1876, 2446, 2447, 2449; Cruikshank v. Luttrell, 67 Ala. 318 ; Golding v. Golding, 24 Ala. 129. These several powers are legitimate methods or instrumentalities in the process of administration. There is no good reason why ejectment can not be maintained against any one else than the hei/rs or devisees, as well for Am, purpose of distribution as for .the payment of debts. It is true that the legal title, on the death of the testator or intestate, descends eo instanti to the devisees or heirs as the case may be; but it is subject to be divested for the purposes of administration. And even though possession be recovered by the personal representative, his application to sell the lands to pay debts may be contested, and defeated by proof that there are no debts due by the estate, or that the personal assets are sufficient to pay them. — Davis v. Tarver, 65 Ala. 98. Or where the sale is for distribution, the *226coiu-t will not grant the order to sell unless it be shown that the lands “can not be equitably divided among the heirs, or devisees.” — Code, 1876, § 2449. The suit here instituted by the personal representatives of the decedent is not against the heirs or devisees, but presumably in their interest and for their benefit. It is an action against strangers holding adversely to both them-and the plaintiffs testator. It is, therefore, immaterial that the debts are barred or paid — an inference which is fairly deducible from the lapse of more than twenty years since the death of the decedent.

The record fails to show that' the executors, who sold the lands in controversy in the year 1863, ever executed any deed of conveyance to the purchaser. The legal title, therefore, remained in the heirs, and they could recover possession by ejectment from the purchaser, or any one holding under him. For the same reason an action at law would lie in favor of the personal representative, who sues for possession of the premises in order to sell for the purpose of distribution among those entitled. — Doe v. Hardy, 52 Ala. 291; Cruikshank v. Luttrell, 67 Ala. 322.

In such actions the equitable title can not be interposed, in courts of law, to defeat the legal title. -Hence, it would be no defense to this action that the purchase-money for the lands was all paid, and distributed among the heirs or devisees by the executors who made the sale under the authority of the probate court. Such payment would not operate, at law, as an estoppel either against those receiving the purchase-money, or against the administrator de bonis non. — Allen v. Kellam, 69 Ala. 442; Collins v. Johnson, 57 Ala. 304; Robertson v. Bradford, 70 Ala. 385; Whitehead v. Jones, 56 Ala. 152.

Before the payment of the purchase-money, the possession of the vendee, and of those claiming under him, would not presumptively he considered as adverse either to the heirs, or the executor. The holding would be regarded as in subordination to, and continuous recognition of the vendor’s title. After such payment, however, the rule would be otherwise. The vendee then having a perfect equity, it is presumed that his possession is hostile to the vendor, because he is no longer under the obligation of pecuniary duty to him. — Potts v. Coleman, 67 Ala. 221. An adverse claim of title by the vendee, or those claiming under him, accompanied by an open, continuous, exclusive and uninterrupted possession, would mature into a good title, if it1 prevailed for a period of ten years, during which the statute of limitations was operative. — Baclay v. Smith, 66 Ala. 230; Smith v. Roberts, 62 Ala. 83. The statute did not commence to run, however, until after the payment of the purchase-money — the exact date of which is not disclosed *227by the record — and not earlier than the 21st of September, 1865. This results from the settled rule in this State, that in computing the time necessary to create the bar of the statute of limitations, the period elapsing between the 11th day of January, 1861, and the 21st day of September, 1865, is required to be excluded. — Carter v. Carter's Adm’r,53 Ala. 365.

The court properly charged the jury that the records of the probate court introduced in evidence were insufficient to show payment of the purchase-money at a time ten years prior to the institution of the present suit, and its other, rulings were in conformity to the principles which we have announced above.

The judgment must be affirmed.