49 Ala. 590 | Ala. | 1873
— The bill in this case is filed by John Neal, as complainant, against McCormick Neal, Robert P. Hall, John R. Hall, Cyrus W. Strother, and Ellen Thornton, as the administratrix of the estate of M. W. Thornton, deceased, as defendants. The purpose of the suit is the enforcement of a vendor’s lien on the lands particularly described in the bill, which had been purchased by said deceased in his lifetime. The complainant was allowed to amend his bill, by making the heirs of said M. W. Thornton parties ; but it does not appear that this order to amend was acted on, or who these heirs were, or whether there were any such persons. The defendants were all served with subpoena, or brought in by publication. None of the defendants answered the bill, or made any defence on the merits ; and decrees pro confesso were'regularly taken against each of them. There was no memorandum of the testimony offered by the parties at the hearing, as required by
The bill alleges that the lands in controversy were sold by the administratrix of the estate of the purchaser, after his death. It is not, however, shown that she made this sale by order of the Court of Probate, but only that she made the same “ as administratrix ” of the estate of said M. W. Thornton, deceased, and that said Halls and Strother purchased said lands at said sale by said administratrix, and that they had knowledge and notice of the lien sought to be enforced by complainant’s bill. If this be true, and all the defendants except the administratrix admit it to be true, by refusing to answer the complainant’s bill, and submitting to decrees pro eonfesso against them; then the interest of the heirs of the intestate, whoever they might be, in the lands mentioned in the bill as subject to complainant’s lien, were cut off by such sale; and they had no real interest in the matters in litigation, which the administratrix was not fully competent to defend. They were, then, not necessary parties to the suit.
2. The motion does not show who the proper parties defendant were, that had been omitted. It does not anywhere ap
4. The error that there was no order for the taking of an account on reference to the register, is not well taken. The allegations of the whole bill are to be taken as admitted by all the defendants on the decree fro confesso, except the administratrix. Rev. Code, § 3391. The statements of the bill furnish all the facts necessary to ascertain the exact amount due the complainant, without resorting to a reference to the register and master. It required merely a calculation of interest, and a deduction of admitted payments on the note. When such is the case, the calculation of interest, and deduction of the credits, may be made by the chancellor himself, without any reference to the register. Savage v. Berry, 2 Scam. 545. We have no statute or rule of court known to me, which forbids this practice. It is certainly to be commended, when there is no contest about the sum due, and all the facts to ascertain it are admitted by the parties whom it is to affect. This assignment of error cannot be sustained. Winter v. Rose, 32 Ala. 447.
5. The lands named in the bill having been sold by Mrs. Thornton, as administrator of the estate of said decedent, to the Halls and Strother, they became their property. The Halls and Strother, at a proper sale, could purchase such title as Mrs. Thornton, in her character of administratrix, could sell, and she could sell such title as was vested in her intestate. Rev. Code, §§ 2060, 2080, 2221, 2222; 1 Brick. Digest, p. 940, § 361, 362. Then, in this suit, she has no interest in the lands subject to the complainant’s lien, and is but a nominal party, unless relief was prayed against her specially; which is not done. The foreclosure is all that the bill seeks to accomplish. This cannot affect her, as she has parted by the sale with all her interest in the lands. No judgment can be given against her for the debt. She is brought into court merely in aid of the foreclosure, and might have been omitted. The relief asked by complainant is, “ that a lien may be declared in his favor upon said land, for the payment of the purchase money
Accordingly, the judgment of the court below is affirmed, and the said appellants, said Robert G. Hall, and James R. Hall, and Cyrus W. Strother, will pay the costs of this appeal in this court and the court below.