Vanderveer v. Ware , 69 Ala. 38 ( 1881 )

PER CURIAM.-

-This cause was heretofore before this court, on appeal from the decree of the chancellor, sustaining a demurrer to, and dismissing the original bill. The theory of the original bill was, that as the appellant had become the surety of the executor, Robert Y. Ware, on a supersedeas bond, given on appeal from a judgment against him in his representative capacity, which judgment was affirmed, and after- its affirmance, and the payment thereof by the appellant, was assigned to him by the plaintiff in the judgment, he stands in the relation of a judgment creditor of the testator. That theory, we held, was insupportable; but we held, in effect, that as a creditor of his principal, Robert Y. Ware, the appellant, could be subrogated to whatever rights of reimbursement the principal would have had from the estate of the testator, if'he had paid the judgment; or could reach and subject whatever of interest in the real or personal property, to which the principal was entitled. Vanderveer v. Ware, 65 Ala. 606.

The bill has since been amended, but it does not disclose a .-state of facts upon which the executor, Robert Y. Ware, the principal of the appellant, could, if he had paid the judgment, support a claim to charge the lands devised, which had passed into the possession of the devisees. And it is shown, that he had aliened to others the lands devised to him, or -in which he had a contingent interest, upon considerations not assailed. Whatever of individual interest the principal had, was parted ■with by him without fraud, and the alienees have not only the legal estate, but an equity at least equal to any which the complainant can prefer.

The decree of the chancellor is in substantial conformity to the opinion we expressed^ heretofore, the correctness of which we do not doubt, and must be affirmed.

Stone, J., not sitting.