Foley v. Leva , 101 Ala. 395 ( 1893 )

HARALSON, J.

The decree rendered in this cause-, on the 7th April, 1890, was a final decree, which settled all the equities of the bill as between the complainants and defendants. The account ordered was in accordance with the opinion and decree of the court, and looked merely to the perfecting of the decree. To the extent of settling the equities between the parties, it was final, and as to the matter of the taking of the account, it was interlocutory. — Smith v. Coleman, 59 Ala. 262; Jones v. Wilson, 54 Ala. 50; Waldrop v. Carnes, 62 Ala. 374; Malone & Foot v. Marriott, 64 Ala. 486; Broughton v. Wimberly, 65 Ala. 550; Walker v. Crawford, 70 Ala. 567; May v. Green, 75 Ala. 162; Adams v Sayre, 76 Ala. 509; Marshal v. McPhillips, 7Q Ala. 145; Louisville Manfg. Co. v. Brown, ante p. 173.

The decree being final, was subject to review on appeal to this court, if taken within a year from the rendition thereof; and no appeal having been taken from it, until the 19th day of April, 1892, it was barred at the time taken, and can not now be reviewed. No assignments of error can be made upon a decree which does not support an appeal, or upon one which is barred. A motion to strike' out the errors here assigned, based on this decree, must be granted. — Stoudenmire v. DeBardelaben, 85 Ala. 85, 4 So. Rep. 723; Kimbrell v. Rogers, 90 Ala. 346, 7 So. Rep. 241; and authorities supra.

The account as finally stated and confirmed by the court, contained several items which were excepted to by the complainants, which require notice.

Mrs. Foley bought the lot out of which this litigation springs, having used the money of her intestate in its purchase and subsequent improvement. She rented it out afterwards, and turned the rent contract over to defendants, on which they realized $700. She borrowed $300 from Daniel O’Rourke, on her own account, with, which the estate of her intestate had nothing to do, and paid it to defendant Leva, on her individual debt to him, secured by said mortgage, and this money she afterwards refunded to O’Rourke, out of the money of the estate, but it is not shown that defendants had any knowledge or connivance in that transaction. She also paid them, as she claims, the proceeds of five bales of cotton, amounting to $162.29. These several sums, the complainants claim, ought to have gone as credits on the Spence and Steele debt, of prior claim to defendants’ individual debt against Mrs. Foley, and not to the latter, and these constitute the basis of many exceptions in various forms, but to the same effect.

It is a familiar principle, that when an administrator uses the funds of the estate in the purchase of land, taking title to himself, the distributees, may, at their election, either claim the land with rents, or hold him responsible for the money with interest, and have a lien declared on the land for the payment of the same.— Lehman v. Lewis, 62 Ala. 131; Parks v. Parks, 66 Ala. 327; Bass v. Bass, 88 Ala. 413, 7 So. Rep. 243; 3 Brick. Dig. 785, §§50, 51.

The complainants made their election, and by their bill seek to charge the defendants with the money of the estate of Patrick Foley which went into the lot, with the interest thereon, and not to recover the lot itself. Having elected to claim the money and interest they must stand by their election, and can not also claim the lot in which the money of the estate was invested, or the rents thereof. By this election, they confirm the title of Mrs. Foley to the lot and to its rents. There was no error, therefore, in treating the rents of the lots as hers, and in applying them to her individual debt to defendants, Leva & Co. — 2 Story Eq. Jur., §§ 1262, 1263; 2 Perry on Trusts, § 842; Whaley v. Whaley, 71 Ala. 161; Parks v. Parks, supra; Preston v. McMillan, 58 Ala. 84.

The exceptions based on the supposed erroneous application of the $300 borrowed by Mrs. Foley from O’Rourke, with which she made a payment to the defendants, on her debt to them, is equally untenable. When she borrowed and paid the money, it was her individual property. The estate had no right or equity in it, and the fact that she subsequently took a like amount from the estate of her intestate, and paid this debt to O’Rourke, did not change or have any effect on the transaction of the payment of the sum originally borrowed from him to defendants. No equity in her favor or that of her children, the complainants, as against the defendants, arises out of such a conversion of the funds of her intestate.

As to the application of the proceeds of the five bales of cotton, it is sufficient to say, there is no evidence to show that they belonged to the estate. Mrs. Foley testified, she was doing a mercantile and advancing business to farm hands, on her own account, and as to one of the bales, she testifies, positively it was hers,and as to the others, she did not say they belonged to the estate, but she did say,she was receiving ,at the time,cotton of her own, on account of advances. There was no error in the ruling as to this cotton.

We find no error in the record, and the decree of the chancery court is affirmed.