73 Ala. 222 | Ala. | 1882
— 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
» 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
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
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.