Solomon's Heirs v. Solomon's Adm'r , 81 Ala. 505 ( 1886 )

STONE, C. J.

— The bill avers thatB. A. Solomon, administrator of S. L. Solomon, under an order of court therefor, m all respects regular, sold real estate of his intestate on November 9, 1859, on a credit of one, two, and three years, and himself became the purchaser of several parcels which the bill describes. The bill further avers that the sale was reported to the Probate Court and confirmed. It is then averred that each of said parcels of land is in the possession of a sub-purchaser from B. A. Solomon, giving the names of the sub-purchasers, and describing the parcels purchased and held by each. B. A. Solomon and his sureties are, each, averred to be insolvent; and the bill charges that the purchase-money is wholly unpaid. The heirs of S. L. Solomon are complainants, and the purpose and prayer of the bill are to have the lands sold, each tract for its respective purchase-money. B. A Solomon and the sub-purchasers are made defendants. The last installment of B. A. Solomon’s purchase matured November 9, 1862. The present bill was filed August 25,1885, twenty-two years and nine months afterwards. The bill contains no averment of any act or admission of B. A. Solomon, recognizing the continued existence or binding obligation of his promise to pay for the land.

Several of the sub-purchasers filed demurrers to the bill, on the ground of staleness and the presumption of payment the law raises at the end of twenty years. The chancellor sustained the demurrers ; and the complainants declining to amend, the ruling was made absolute. The chancellor did not err in this ruling. — Rhodes v. Turner, 21 Ala. 210 ; McAuthur v. Carrie, 32 Ala. 75 ; Austin v. Jordan, 35 Ala. 642; Goodwyn v. Baldwin, 59 Ala. 127 ; Phillippi v. Phillippi, 61 Ala. 41; Garrett v. Garrett, 69 Ala. 429; Walker v. Crawford, 70 Ala. 567; Worley v. High, 40 Ala. 171; Blackwell v. Blackwell, 33 Ala. 57.

The present case went off in the court below on the demurrer of a part, less than the whole of the defendants. The defendants, B- A. Solomon, W. C. Kooner, and P, M. Thomas were material parties, against whom relief was prayed. They neither answered, pleaded nor demurred, nor was any motion made by or for them. The last two, Kooner and Thomas, are alleged to be in possession of parts of the land as sub-purchasers. They have made no defense in any form. Now, while the defense of staleness may be made by demurrer, when the facts out of which it springs appear on the face of the bill, (Sto. Eq. PL §§ 484, 503, 751), still it is defensive and must be claimed. — 1 Brick. Dig. 699, § 859; Maury v. Mason, 8 Port. 211.

The chancellor erred in dismissing the entire bill. It should have been retained as to the parties who have offered no defense. This will include Josephine Mizelle, who, though made a defendant, is aligned in interest with the complainants. Let the costs of appeal be paid by B. A. Solomon, "W. C. Kooner, and P. M. Thomas.

Beversed and remanded.