Banks v. Speers , 103 Ala. 436 ( 1893 )

HARALSON, J.

1. As touching plaintiff’s interest in the real estate — the sale of which by Speers, the administrator de bonis non of M. D. Burchfield, this bill is filed to enjoin — upon the same state of facts showing his interest in and title to. the property, as,is before us in this, record, we said, in the case of Banks v. Speers, 97 Ala. 560 : “If the record before us truly sets forth the facts, the sale and conveyance to Banks, made, as they were, by the widow and all the heirs, vested in him all the title and ownership of the .lots, except what may be required to pay the judgments brought to view in the trial below, and the attendant expenses of administration. This is the extreme limit of the right the administrator de bonis non can assert. Any thing beyond that, which may be realized from a.sale of the lands, will become the property of-Banks, the purchaser. Such being the outside limit of the liability resting on the lots, it follows that, if those debts and the attendant expenses are paid, the extremest right that Speers could assert, will have been met and satisfied, and no further disturbance of Bank’s title and possession can come from that quarter.”

It is manifest, then, that the only interest appellant has in this litigation, and in the estate of said M. D. Burchfield, is in the title to the two lots mentioned in the bill. If he has such a case, as that he can perpetually enjoin the administrator de bonis non from selling those lots for the payment of the debts of the deceased, he has no concern in the settlement of said estate between, the heirs and distributees of the intestate,

The administrator de bonis non has no rights to this property, except for the purpose of paying debts, and, if there are personal assets sufficient to pay these, he is without authority to touch the land for that purpose. For it is well understood, that if there are sufficient personal assets to pay the debts of the decedent, there can be, under the. statutes, no order for the sale of his lands for their payment. The existence of debts to be paid is a jurisdictional enquiry in an application for the sale of lands for such purposes. — Code, § 2103; Owens v. Childs, 58 Ala. 113 ; Lee v. Downey, 68 Ala. 98.

2. And akin to this, is that other as well settled principle, that if the personal effects, over and above exemptions, have been sufficient to pay the debts of an estate, and they have been wasted by the administrator or applied to his own use, this fact furnishes no ground for the sale of the lands. The administrator and his sureties, must be looked to, to make up the deficit, and proof of such facts is a bar to any order of sale that may be asked for. — Banks v. Speers, supra.

The fact is stated in the bill, that S. R. Burchfield, the administrator in chief of the estate of said M. D. Burchfield, upon his appointment and qualification as such, came into the possession of money and choses in action belonging to his intestate, of value, over and above exemptions, sufficient to have paid off and discharged all the debts against his intestate, and all the costs and expenses of administration; but he has misapplied and wasted or converted them to his own use, and did not apply them to the debts of the decedent. If this be true, no recourse can be had to the real estate for the payment of the debts, if any, that may be owing.

3. It is also further averred, that the only debts not barred by the statute of limitations or non-claim against said decedent, were claims of Solomon & Levi and Haynes & Gaines, and B. M. Long; that said firms sued said administrator in chief on their respective claims, the former in the circuit court, and the latter before a justice of the peace, and recovered judgments against him, the one for $226, and costs, and the latter, in two suits, for $140.-70, on which judgments, executions were issued, de bonis intestatis, and, coming to the hands of the sheriff of- the county, were by him returned, “No property fotmd;” that suits were, thereafter, instituted by the plaintiffs in said judgments in the circuit court of Walker county, against the sureties on the administration bond of said S. R. Burchfield, as for a devastavit, to recover the amounts of their respective judgments and interest, alleging in the complaint, the facts above stated, and averring also, that goods and chattels of said M. D. Burchfield, sufficient in value to pay said judgments, came to the hands of said administrator, who wasted and converted them to his own use, and he did not pay said judgments or any parts thereof from said goods and chattels; and, in said suits, on issue joined, judgments were rendered against said sureties for the amounts of said judgments.

If these facts are true, they are conclusive of a devastavit against said administrator and the sureties on his bond, and bar any order of sale of said lands that may be asked for, for the payment of said judgments. — Banks v. Speers, supra; Martin v. Ellerbe, 70 Ala. 341; Grimmet v. Henderson, 66 Ala. 521; Seawell v. Buckley, 54 Ala. 592; Waring v. Lewis, 53 Ala. 623, 626; Kyle v.Mays, 22 Ala. 692.

4. The bill further shows, that complainant, after the lapse of more than 18 months from the grant of letters of administration to said S. R. Burchfield, purchased from the widow and heirs of the intestate, two lots in the town of Jasper, for which he paid them in cash the sum of $2,500, — their full value, — and took a warranty deed from them; five hundred dollars of which amount was paid to S. R. Burchfield, one of the heirs of the intestate, and one of the grantors in said deed, and also the administrator of said estate, as his share of the purchase money of said lots ; that no efforts had been made by said administrator or by any of the creditors of decedent, to have the real estate sold for the purpose of paying debts, and complainant was told by said administrator, before he purchased said lots, that the lands of the estate were not subject to the debts of intestate, upon the faith of which assurance, he purchased and paid for said lots.

It is further stated, that said judgments have been paid either by S. R. Burchfield himself, or by some of the sureties against whom they were rendered, but have not been marked satisfied; but, by collusion between the plaintiffs in said judgments and the sureties of said S. R. Burchfield, and said Burchfield, himself, the judgments are allowed to stand unsatisfied, in order that the land bought by complainants may be subjected to their payment, for the benefit of said Burchfield; and that he', in order to save said John Speers and S. G-. Childers, two of the sureties on his administration bond, harmless, executed and delivered to them a mortgage on certain real estate therein mentioned.

5. It is also made to appear that after said Speers became administrator de bonis non of said estate, he was sued, as such, by said B. M. Long on his claim against said estate, and judgment recovered thereon against him for $100, which judgment, Long agreed with Speers he would not enforce against him personally; that complainant, in ignorance of any such agreement, purchased said judgment from said Long, and now owns the same.

If the administrator in chief came into possession of assets of the estate, sufficient to pay this, and the other debts of the estate, but wasted them and converted them to his own use, as is alleged, the statute clothed the administrator de bonis non not only with the authority, but made it his duty, to compel a settlement of his predecessor, in an accounting by him for the assets which he wasted or converted. “The title, authority and duty of the administrator de bonis non, in such case, in respect to the liability of his predecessor is precisely that he has in reference to the choses in action of his intestate. ” The claim of the administrator de bonis non against the administrator in chief for a devastavit, is a personal asset in the hands of the administrator de bonis non. And if he fails to use proper diligence, to recover such assets; and protect the estate against loss, he renders himself accountable for the loss to those entitled to the estate.— Eubank v. Clark, 78 Ala. 81; Martin v. Ellerbe, 70 Ala; supra; Glenn v. Billingslea, 64 Ala. 352 ; Waring v. Lewis, 53 Ala. 628; Code, § 2173.

Besides, upon Speers’ appointment as administrator de bonis non, his right to demand and his obligation to pay co-existed in himself, and he became chargeable with the two judgments recovered against him as one of the sureties of the administrator in chief, as though he had collected the money thereon. — Ragland v. Calhoun, 86 Ala. 611; Flinn v. Carter, 59 Ala. 364.

6. It is averred that the administrator in chief resigned, on the 2d of November, 1891, and on the 6th of the same month, said administrator de bonis non was appointed; and it is charged that the object and purpose of the resignation of the one, and the appointment of the other, was to obviate, as far as possible, an estoppel against the administrator in chief from recovering lands from complainant, which he had conveyed, as one of the heirs of his intestate, to complainant. It is further charged that said John Speers is solvent, that said judgments could have been collected out of him, but the plaintiffs in them have made no effort to do so, and said Speers has wasted the assets of the estate in his failure to collect the same as he might have done.

Complainant has shown that he is the owner of said lots of land, and the party really interested to resist the application of the admistrator de bonis non, in the probate court, for an order for their sale to pay debts. He was not, and in the nature of things could not be, a party to that proceeding. He has a right, therefore, to apply to the chancery court for its injunction against an order to which the administrator, under the averments of the bill, had no right, and the granting of whichi in that court, he was powerless to prevent.

As has been shown, complainant has no occasion for the removal of this estate from the probate into the chancery court, to protect himself against the demands of the administrator de bonis -non, on his lots of lands for the payment of the debts of the intestate, so far as they are brought to light in this case. But,he has presented a case entitling him to a perpetuation of the injunction granted against the writ of possession and the application of said administrator in the probate court for their sale to pay debts.

7. The only necessary parties defendant to the bill were the administrator de bonis non, John Speers, and the widow and heirs at law of said M. D. Burchfield, and the plaintiffs in said judgments — E. Solomon and E. H. Levi as Solomon & Levi, and Sylvester Gaines and T. H. Haynes, as Haynes & Gaines ; and we understand the court below to have so ruled.

All the other questions sought to be brought into the litigation, are foreign to the true purposes of the bill, and the court correctly so decided. . The motions to dismiss for want of equity wero. properly overruled.

The rulings on the many grounds of demurer and motions interposed, seem to be in accordance with the principles above declared, and the decree is affirmed.