Knight v. Knight , 103 Ala. 484 ( 1893 )

HEAD, J.

On Januai'y 27 th, 1883, J.A. Knight, owning one-sixth interest in the lands described in the bill, sold and conveyed the same to the defendant, Comer W. Knight, who executed to the vendor his promissory note for $1,250, for a balance unpaid of the purchase money. Afterwards, Comer W. Knight sold his interest, so acquired, in a portion of the lands, to the defendant, Nancy McQueen. J. A. Knight thus held the vendor’s lien on the lands for the security of the purchase money note. Afterwards, he died, still owning the note, of which $642 remained unpaid; and the bill avers that “after-wards, in the distribution of the estate of said J. A. Knight, the same being solvent, and all the heirs and distributees being of full age, the note aforesaid became the property, and went into the possession, of the legal heirs to the same entitled, and was by them transferred by delivery, and for a valuable consideration, to your orator.” It is by virtue of the right to the note thus acquired by the complainant, that he claims ownership thereof and the right to maintain this bill to enforce the lien of a vendor on the lands. His ownership and right so to sue are questioned by demurrer to the bill. It will be observed that it is not averred that the estate of J. A. Knight owed no debts, nor that the debts, if any, had been paid ; nor that the distribution, by which the note went into the hands of the distributees, was made by the administrator, in the course of administration. It must be taken, therefore, that there were debts which the note in question was needed to pay, and that the administrator was entitled to it, for that and other lawful purposes of administration, whenever he might see proper to demand it. This being so, the distributees were without immediate right to it, and could confer none on the complainant. If the bill had averred that there was no administrator and no debts, or that the distribution to the distributees, by which they acquired the note, was made by the administrator, in course of administration, the caso would have been different. In the former case, the distributees could lawfully have divided the estate among themselves (Carter v. Owens, 41 Ala. 217) ; in the latter, they would have acquired the right to the note from the administrator himself. In either case, their transfer of the note, by delivery, to complainant, would have passed .to him the beneficial ownership entitling him to sue in equity to enforce the vendor’s lien. — Code, § 2764. But a transfer, by delivery merely, would pass only the beneficial ownership, the legal title still remaining in the transferrer ; and the general rule is, that the transferee, in such a case, suing in equity to enforce the note, or rights growing out of it, must make the holder of the legal title a party. We have applied this rule to suits for the enforcement of vendors’ liens. — Broughton v. Mitchell, 64 Ala. 210 ; Davis v. Smith, 88 Ala. 596. With his consent, he may be joined, as complainant, with the transferee, or, at the election of the latter, be made a party defendant. — Davis v. Smith, supra. Our decisions have established a virtual exception to this rule, which is, as above indicated, that when the estate of a decedent owes no debts and has no administrator, the distributees may sue for reduction to possession and distribution among themselves of the personal assets of the estate, without having an administrator appointed and bringing him before the court. — Fretwell v. McLemore, 52 Ala. 125; Baines v. Barnes, 64 Ala. 375, and other cases. Though none but the personal representative can, technically, be the legal owner of the personal assets of a deceased person, prior to distribution or transfer made by him, yet if there is no personal representative, and no necessity for one ; if his appointment would be a useless formality, having no other office than to make distribution, the law dispenses with his intervention ; treats the beneficiaries as being clothed with his rights and powers, and confers upon them his remedies to reduce the assets to possession. In other words, it, substantially, regards them in such case, as the legal, as well as beneficial, owners of the assets. We think, therefore, pursuing this well recognized exception to its logical conclusion, that if there is no administrator and no debts, and the distributees take possession of the assets, as owners, for distribution among themselves, they will be regarded as the legal owners, and they alone need be brought before the court, as the representatives of the legal title, in a suit in equity by their transferee of a note, by delivery. It would not be necessary to procure the appointment of an administrator, and bring him before the court.

The bill is not well drawn in other respects. It abounds in conclusions where facts ought to be averred. For instance, it fails to show the domicil of J. A. Knight at the time of his death, so that it may be known by the laws of what State the distribution of the estate is governed ; nor does it show the relationship of the persons alleged to be distributees to the deceased ; but these aver-meats are attempted to be supplied by the conclusions of the pleader that the persons from whom complainant claims were the distributees lawfully entitled to the estate. The demurrers were well taken and an order will be here rendered, reversing the decretal order of the chancellor, and sustaining the demurrers to the bill. The complainant may amend within thirty days, with authority in the chancery court,.to extend the time on sufficient showing.

Reversed, rendered and remanded.