19 Ala. 105 | Ala. | 1851
1. We do not think this writ of error should be dismissed for want of proper parties, as in our opinion the proper parties are before the court. In applications of this kind, the statute seems to regard the administrator or executor of the deceased vendor as the only indispensable party defendant, though others interested could perhaps come in, propound their interest and be allowed also to defend. Nothing of this kind, however, occurred in the court below, and the case is properly represented in this court by the administrator against whom the decree was rendered, as the plaintiff in error. — Clay’s Dig. 157, § 38. The motion to dismiss the writ must be overruled ; for if the objection taken were well founded, this court would allow the writ to be amended under the act of 1843.— Clay’s Dig. 312, § 39.
2. The statute enacts, “ That when any person owning lands or tenements, shall sell the same, and enter into bond or obligation to make titles thereto, and shall depart this life without having made titles, in that case the person to whom such bond or obligation was given, his executors or administrators, may petition the Orphans’ Court of the county, where probate of‘ the will of such deceased person was taken, or letters of administration granted, to compel the executors or administrators to make titles, agreeably to the bond or obligation given by the decedent,” &c. It then prescribes notice to be given by publication in some newspaper in the State once a month for at least three months, when the court may, if it find the said contract was fairly made, order the executor or administrator to make titles as such, to the lands, ,&c. We have recently held, (16 Ala. 348,) that in proceeding under this statute, the petition should disclose that the deceased was the owner of the land at the time of his death. No objection is taken in this case to the petition, which indeed appears to be very correctly drawn; but it is insisted that the parol declarations of the decedent, that he was the owner of the land, as set out in the bill of exceptions, wore insufficient to show that he was
3. Neither, in our opinion, would the fact that the person holding the bond for title had sold a portion of the land to a third party, deprive the Orphans’ Court of jurisdiction. It is indispensable that he should procure a title himself, before he can comply with his engagement to convey a title to his vendee, and if he has paid in full for the land, so as to relieve it from all liens which the decedent could assert against it for the purchase money, and holds the title-bond for the latter, the administrator has no concern with the disposition which he intends to make, or has contracted to make of the title, after it shall have vested in him.
4. We are informed by the bill of exceptions in this case, that Bates having purchased the land from Fareinholt, took his title-bond and executed his notes for the purchase money ; that he afterwards sold a portion of the land to one Posey, and took Po-sey’s notes, which he endorsed to Fareinholt, and took up his own notes, paying the balance in money; Posey died and his estate -was declared insolvent, and paid on final settlement only seventy per cent, to the creditors. The balance upon the notes of Posey remains unpaid. It is insisted that, inasmuch as it does not appear that Fareinholt prosecuted the maker of the note endorsed by Bates so as to fix a liability on Bates as endorser, that he must be discharged from the notes and the arrangement regarded as a complete payment, so far as Bates is concerned. However true this would be, as respects the notes of a party disconnected from the purchase of this land, we think it very clear in the case before us, that as the notes of Posey were given to Bates in consideration of the purchase of a portion of this land, Bates held a lien on the land thus sold for the payment of the purchase money. It is, further, a well settled rule of law, that where a party endorses and transfers a note secured by a lien, which is in the nature of an equitable mortgage, h* transfers with it the lien for its security. In other words, the debt, which is the principal, being assigned, the lien, which is the incident, follows it into the hands of the assignee, and this lien is
In Driver v. Hudspeth, 16 Ala. 348, we held that the vendee who sought title by this summary remedy must show that he has an equitable right to the land, freed from the lien of the vendor, before the Orphans’ Court can properly decree title to he made by the personal representative. In this case, it is true, the decedent may have lost his lien which he originally had as against "Bates, by losing his recourse upon his endorsement; but then Bates having sold and transferred the note to his vendor, the latter is subrogated to the rights of Bates, and consequently still retains a lien on the portion of the land which Bates sold. Thus the case is brought within the influence of the decision of Driver v. Hudspeth.
.■ It results from this view, that the Orphans’ Court erred in • decreeing that the administrator should convey before the remainder of the note on Posey was paid.
Let the decree be reversed, • and the cause remanded.
