Nunn v. Norris , 58 Ala. 202 ( 1877 )

BRICKELL, C. J.

We may concede that Lamar’s acceptance of bis own debt, in part payment of the purchase money of the lands, was unauthorized; and that it rested in the election of the appellees, either to treat it as a payment, and hold him liable for it, or, to disregard it, and hold Nunn liable for an amount of the purchase money, equal to the debt. It may be conceded further, that if they elected to disregard it as a payment, the appellees would have had a lien on the lands for an amount of the purchase money equal to it, which a court of equity would have enforced. The appellees were thus clothed with inconsistent rights, and were bound to elect which they would exercise. Lamar, as administrator, could be charged only on the ground that the acceptance of his own debt, was a payment of the purchase money. It would result from charging him, that there would be no right of recovery against Nunn; for that right depends on the ground, that the purchase money has not been paid. It does not appear to have been controverted by evidence, (though, the bill avers the contrary) that on the final settlement of Lamar’s administration in the court of probate, the appellees, with full knowledge of the facts, caused, or suffered him, to be charged with the entire purchase. money of the lands, thus increasing the amount of the decrees they obtained against him. Having thus elected to treat the purchase money as paid, and obtained decrees against Lamar for it, they cannot now assert it is unpaid, and' proceed against Nunn for its recovery. They have elected the right they would exercise, and must abide the election. — Butler v. O’Brien, 5 Ala. 316; Pickens v. Yarborough, 30 Ala. 408; Williamson v. Ross, 33 Ala. 509.

The decree of the chancellor must be reversed, and a decree is here rendered dismissing the bill, at the costs of the appellees in this court, and in the Court of Chancery.