State ex rel. Craft v. Williams , 131 Ala. 56 ( 1901 )

TYSON, J.

Confessedly, at the date the revivor was attempted, the debts, for the payment of which the lands are sought to be subjected, were barred by the statute of limitations, more than six years and six months having elapsed between their maturity and the making of the motion for the order or revivor, unless the order of sale granted on the petition of the administrator in chief, sought to be revived and enforced by this appellant, precludes the heirs of those succeeding to their title or interest in the lands from invoking the defense. The vital question presented for our consideration is, whether the decree of 'sale is res ad judicata as to the validity of the debts, and the insufficiency of personal property of the estate to pay them as against the heir or his successor in interest. Before disposing of this question, it will not be amiss to say, notwithstanding it seems to be conceded, that the defendants in the revivor proceeding, wlio acquired the title of the heirs of appellant’s intestate by purchase under a decree of sale of the probate court of the lands for partition, can interpose any defense which would be available to the heirs. In other words, they take the place of the heirs, having the title to the land sought to be subjected. — Spears v. Banks, 114 Ala. 323.

On the death of an intestate, his lands descend directly to the heir, subject to the right of the personal representative to subject them to payment of debts, which are valid, subsisting, legal demands against the intestate, if he was living. The existence of an insufficiency of personal property to pay the debts, however, is a condition precedent to the exercise of this power. So, then, as against the heir or his successor in interest, the land cannot be sold by an administrator to pay debts, unless there exists at the time of the sale, valid, legal, subsisting demands against the intestate and an insufficiency of personal property to satisfy those demands. — Steele v. Steele, 64 Ala. 438; Scott v. Ware, Ib. 174. This must be the status or condition of the estate at the time the decree of sale is rendered and this stains must continue until the title of the heir is divested by the proper execution of the decree. Manifestly if there are no debts, or if the debts which once were enforceable demands have become barred by the statute of limitation, no necessity exists for the exercise of the power reposed in the administrator by the statute to sell the lands of the heir. This proposition does not seem to be controverted by appellant, but it is contended that when the petition for the sale of the lands was heard, the heirs were parties and had the opportunity to interpose all available defenses against the validity of the debts as enforceable demands, and, therefore, they or their successors in interest are now precluded from showing a change in the status of the estate — to-wit, that there are no debts for the reason that they are barred by the statute of limitations. The principles declared in Ford v. Ford, 68 Ala. 141, are conclusive of this point. Jt is there said: “When an application to the Court of Probate, by a personal representative, for an order to sell lands for the payment of debts, is contested, it assumes the form, and has the characteristics and properties, of a suit inter partes. The judgment or decree rendered by the court- is conclusive between the parties, in reference to the subject-matter of the suit, and the matters which were in issue and determined. If the judgment or decree is that the order of sale be granted, it is conclusive that, at the time of its rendition, the personal property of the estate iis insufficient for the payment of debts. Or, if the judgment. or decree is that the application be not granted, it is conclusive that the personal assets are then insufficient for the payment of debts. The judgment or decree has relation solely to the status of the estate in this respect, at the time of its rendition, and not to its status at some subsequent time, when new facts may have occurred changing it. Debts may come to the knowledge of the personal representative, and may be presented and preferred, of which he was uninformed, and the payment of which may render a sale of the lands necessary. Or, without fault on his part, the personal assets may be lost or diminished in value, rendering a sale of the lands necessary, which was unnecessary while the personal assets were available. The decree of the Court of Probate, refusing an order for the sale of the lands, and dismissing the application of the personal representative, as between him and the heirs who were parties, is conclusive, that the personal property of the intestate was, at the time of its rendition, sufficient for the payment of debts.” See also McCalley v. Robinson, 70 Ala. 432. It is scarcely necessary to add, that if the personal representative is not estopped to show a change in the status of the estate rendering it necessary to sell lands to pay debts, that the heir is not precluded from showing the non-existence of such necessity. Estoppels must be mutual.

Affirmed.