C. W. Zimmerman Mfg. Co. v. Wilson , 147 Ala. 275 ( 1906 )

WEAKLEY, G. J.

The bill as amended asserts against the heirs at law of Susanna Wilson, deceased, a claim for a breach of a contract to defend .title, much*, by her in the sale of the pine timber growing upon the lands which had been set apart to her for dower and homestead, as the widow of her deceased husband, Alston Wilson. The claim is rested principally upon the. allegation that some of her heirs* all being made parties defendant to the. bill, are insolvent, and that as heirs and distributees of their mother they had received and divided among themselves the money paid for the timber, as well as all her other property. In order to reach, for the satisfaction of the decree sought by complainant, tlie proceeds of the sale of the dower and homestead lands, made after the death of the widow, at the instance of the administrator do bonis non of tin; estate of Alston Wilson, the father of the other defendants, such administrator was also made a party defendant, and he was by the preliminary writ enjoined from paying to the defendants, heirs of Alston Wilson, “the purchase money arising from the sale of the lands belonging to the estate of Alston Wilson, deceased, by distributing the said purchase, money among said heirs, except in excess of the sum of $700 thereof”; that being the sum deemed sufficient to reimburse complainant for the money paid for said timber and received by defendants, the interest thereon, and costs of suit. Upon motion duly made the chancellor dismissed the bill for want of equity, and from that decree the appeal is taken.

It is conceded — indeed, it is alleged in the bill — that the title of the purchaser at the administrator’s sale is paramount and superior to any right of the complainant growing out of the purchase of the growing timber from the dowress and life tenant. Her interest existing only for life, her conveyance could not impair the remainder. —Smith v. Cooper, 59 Ala. 494. Nor could she commit or authorize the commission of waste. — Alexander v. Fisher, 7 Ala. 514. The administrator do bonis non, therefore, had the clear legal right to seek a sale for division among the heirs of Alston Wilson of the lands in question, and such sale carried the standing timber, constituted a portion of the realty. Moreover, the right of his heirs to .receive the proceeds of said sale was entirely independent of any right they had to participate in their mother’s estate after the payment in due course of administration of all debts and demands against her, and had no relation whatever to any liability for the benefit of her creditors resting upon them in respect of the division among themselves, without administration, of their mother’s money and other property. If the covenant of Susanna, Wilson was broken during her life, the complainant had a remedy by action at law against her for the breach. If the covenant was broken after her deatli, or if a remedy for a previous breach was, after her death, to lie sought for the protection of the covenantee or its assignee, the appointment of an administrator was first necessary, .and a suit against such administrator would afford the proper remedy. The purchaser of the timber or its assignee had no lien upon the money paid therefor, either in'her hands or in the hands of her children, that would authorize a bill in equity against her or the children to.¡obtain a personal decree for the purchase price. When,- as in this state, the lands as well as the personal property are liable for a decedent’s debts, a claim for damages for a breach of the decedent’s contract will not lié against the heirs in the first instance. The claim for damages should be presented in due course of administration, and he asserted against the personal representative. — 8 Am. & Eng. Ency. Law, p. 162; Russ v. Alpaugh, 118 Mass. 378, 19 Am. Rep. 464. It may be complainant might maintain an action for money had and received against the mother’s heirs, who received.the money; but this, if true would not give the bill equity.

Presenting, therefore, no claim which could be asserted in equity against the heirs of Susanna Wilson in the manner attempted by this bill, the bill must fail for want of any substantial support. • Obviously, therefore, the court of chancery could not, by a species of equitable, attachment or garnishment or by an injunction against distribution, seize and hold in gremio legis the moneys of the defendants, coming to them as heirs of their father, to satisfy a decree which the complainant could never obtain. Furthermore, “an estoppel on the part of the mother shall not bind the heir when he claimeth from the father.” Coke, Litt. 365b. An heir claiming an independent title in himself is not estopped to assert it by the mere1 force of covenants of his ancestor. — Russ v. Alpaugh, 118 Mass. 369, 19 Am. Rep. 464.

The principle of law invoked by appellant, that one should not be permitted to convert property into money by a sale, and, the conveyance failing to pass title, hold on to the purchase money and at the same time take back tlie property, has no application under the facts averred and does not serve to impart equity to the bill. The chancellor committed no -error in dismissing the bill. Its dismissal operated to dissolve the injunction, and, the injunction having been reinstated by a supersedeas bond, its dissolution will be accomplished by the affirmance which must be here entered.

Affirmed.

Tyson, Simpson, and Anderson, JJ., concur.