Caldwell v. Caldwell

McCLELLAN, J.

— Hamlin Caldwell died September 3, 1895. Four heirs survived him, viz., G. B. and E. H. Caldwell (complainants) and D. K. and S. Almena CaldAvell • (respondents). Decedent was a large landowner. He Avas indebted to J. E. Butler, to Avhom he had executed two mortgages on lands described in this bill. On December 28, 1896, Butler assigned these mortgages to Sallie B. Brown, and also made to her a quitclaim to the land described in them. On November 21, 1898, Sallie B. Brown assigned the mortgage and executed an appropriate quitclaim to A. H. Moody (respondent) . D. K. Caldwell was constituted the administrator of his father’s estate on September 26, 1895. On February 8, 1897, the heirs of Hamlin Caldwell executed an agreement. The report of the appeal will contain it, omitting the fifth section and the formal parts thereof, not important on the present review. Under this agreement the lands were divided, and each party took possession of the part so allotted; and the lot (1), from the proceeds of which it was contemplated the debts would be paid, was likewise set apart. On June 18, 1896, pursuant to agreement theretofore entered into by all the heirs (except S. Almena, who was not indebted in any form to Hamlin Caldwell or his estate), W. H. Norwood, as an arbitrator, ascertained and reported the respective indebtedness of C. B., E. H., and D. K. Caldwell to the Hamlin Caldwell estate. This award was affirmed to be binding on the parties. —Caldwell v. Caldwell, 121 Ala. 598, 25 South. 825. However, it was also therein ruled that the probate court was without power to further adjudge, in the premises afforded by the award, than that the indebtedness of an heir to the estate Avas equal or exceeded the distributive share of such heir in the estate. Repetition of the particular facts set forth in the report in 121 Ala. 598, 25 South. 825, is not necessary. Reference thereto will suffice.

On October 11, 1902, Aultman Company, a creditor of the Hamlin Caldwell estate, filed a bill with the ultimate purpose of collecting its claim. The heirs and A. H. Moody were made parties thereto. A consent decree was entered October 22, 1904, whereby a sale of the lands for satisfaction of the Moody and Aultman Company debts Avas ordered, and later had. At this sale Moody bid the agreed sum of $16,000, covering the debts and costs, and took conveyance of the land. In May, 1905, Moody, for the same consideration bid by him, conveyed all the lands to D. K. Caldwell, taking a mortgage back thereon for that sum. On a former appeal in this cause (173 Ala. 216, 55 South. 515), where a further report of the facts and of the nature of this bill is made, it was ruled, in effect, that the reconveyance by Moody to D. K. Caldwell revived the relation of cotenancy existing between Hamlin Caldwell’s heirs before the sale under the mentioned consent decree, that, if the other heirs so elected (D. K. early purchased the rights of Almena in the-lands), they were entitled to redeem from A. H. Moody under the D. K. Caldwell mortgage, and, further, that the complainants had not so delayed as to be barred by laches. The conclusion that the cotenants were entitled to redeem was predicated of the relation, and not of the agreement alleged in the bill, viz., that Moody would buy at the sale under the said agreed decree, and the heirs would be allowed a definite number of years to redeem or repurchase the lands so sold. We are not now disposed to disturb the stated rulings on former appeal.

While the amended bill invokes the court’s powers ho ascertain, as between G. B., E. H., and D. K. Caldwell, the respective proportion each should contribute to ultimately effect redemption of the lot, which was assigned to him under the agreement before mentioned, yet the predominating prayer, in respect of redemption, is that the redemption should be of the whole land from Moody, the mortgagee. There is no proposal to only redeem a part of the land from Moody. The entire consequence of the amended bill’s reference to the several lots assigned, under the agreement, to the heirs was to apportion, or to afford opportunity to apportion, the aggregate of the D. K. Caldwell mortgage debt to Moody among the heirs in the proportion they should each contribute to effect a single, completed redemption. Hence the amended bill does not offend the rule, reiterated in McQueen v. Whetstone, 127 Ala. 417, 30 South. 548, that fractional redemption of lands covered by a mortgage is not allowable.

The agreement of February 8, 1897, as we construe it, imposed upon the respective lots assigned thereunder to G. B., E. H., and D. K. Caldwell a contract “lien and charge” to assure (if of course the indebtedness of Hamlin Caldwell’s estate was discharged) the payment of the individual debt of each of said heirs to the estate of Hamlin Caldwell. The last paragraph of the agreement of February 8, 1897, removes all doubt on this score. It is plain, unequivocal. The evident intent of the first and second sections of this agreement was to relieve the administrator as such (D. K. Caldwell) of any obligation in respect of such individual indebtedness of the heirs, and to eliminate such indebtednesses from any effect to toll or extinguish the distributive shares of each, respectively, in the “assets of said estate” other than the lands which, except as to certain rents, were lifted out of the administration. If the agreement was interpreted as having no reference to that individual indebtedness, the result would be, clearly, to strike therefrom the last paragraph in section 6 thereof, a provision that is too plain to be mistaken. It is not to be supposed that parties intend to incorporate in written agreements contradictory provisions. The construction stated above averts the possibility of such a result, and in so doing the language of the instrument is in no wise departed from, nor an intent supplied where none was expressed.

While concluding that the probate court was without jurisdiction to render a personal judgment for the excess of an indebtedness of an heir or distributee to the estate over the distributive share to which such heir is entitled, this court in Caldwell v. Caldwell, 121 Ala. 598, 25 South. 825, affirmed as stated before, the binding quality of the award, closing the opinion with this expression: “* * * Upon this award the court could have properly ascertained the amount of appellant’s (E. H. Caldwell) indebtedness to his father’s estate to be the sum named in the decree.” The award of June 18, 1896, which passed into the probate decree considered in Caldwell v. Caldwell, 121 Ala. 598, 25 South. 825) found the three heirs indebted to the estate in these respective sums: D. K. Caldwell, $1,827.74; G. B. Caldwell, $3,122.02, and E. H. Caldwell $27,528.-55. By his amended answer, which was constituted a cross-bill for the purpose to be stated, D. K. and Almena Caldwell sought to have the said indebtedness of the complainants (G. B. and E. H. Caldwell) reckoned with in ascertaining the amount, as between the heirs, each should contribute to effect the redemption sought by the amended original bill. The view prevailed that at best the statute of limitations of 10 years barred' the remedy the amended cross-bill would, in this relation, have asserted. Approximately 14 years elapsed between the rendition of the award and the filing of the amended cross-bill. The object of the amended cross-bill was to interpose, as between the heirs, and upon the adjustment the amended original bill invoked in respect of the pro rata sum each should contribute to the redemption from Moody, the lien established by the agreement of February 8, 1897, upon the respective lots of the land assigned thereunder to each heir; and not the assertion of a right of recovery upon the indebtednesses, confessedly not paid, the complainants owed the Hamlin Caldwell estate. Hence, short of 20 years the remedy sought by the amended crossbill was not barred.- — Ware v. Curry, 67 Ala. 274, 283, et seq. It need hardly be added that the relief sought by the amended cross-bill was not based upon the award, though that pronouncement, in respect of the individual indebtednesses, afforded the ascertainment of the respective sums due by three of the heirs (the other being unindebted to the estate), and thus operated to establish the amounts for the discharge of which the respective liens, created by the last paragraph of the agreement of February 8, 1897, should furnish security. We can see no basis for an imputation of concluding laches to D. K. and Almena Caldwell, or either of them. There has been no- adverse assertion of rights or attendant prejudicial delay. — Haney v. Legg, 129 Ala. 625, 30 South. 34, 87 Am. St. Rep. 81.

Prom the amended cross-bill it appears that the estate of Hamlin Caldwell was finally settled in the probate court during the year 1897. It is to be assumed that all debts against that estate of Hamlin Caldwell, other than the indebtedness which entered into the sum ($16,000) bid by Moody at the chancery sale have been either paid or have become barred before the amended cross-bill was filed. Under these circumstances the unqualified beneficial right to the respective lien created by the agreement of 1897 to secure the indebtedness established by the award is with the heirs of the decedent in proportions of one-fourth each; and, consistent Avith the doctrine of Noble v. Tate, 119 Ala. 399, 24 South. 438; s. c. 140 Ala. 469, 37 South. 278; one, an heir, so entitled may appropriately assert his right without recourse to an action or actions through a personal representative.

The amended cross-bill asserted, it seems to us, manifest equity. The recognition and effectuation of this equity in this cause, to the subject of which it is so intimately related, will facilitate the final adjustment of the rights of the parties and prevent further litigation, which must result if the enforcement of the lien each heir has upon the allotment of land to each of the others is relegated to a distinct proceeding in a court of equity. No injustice can attend the process. The accounts should be stated between the lienholders in the proportion of one-fourth to each and of three-fourths against each. Since it appears that the indebtedness of úD. K. Caldwell is less than that of either G. B. or E. H. Caldwell, and that Almena Caldwell was without indebtedness to the estate, the contribution, for redemption, by each complainant should be tolled by his respective one-fourth interest in the amount due from D. K. Caldwell; and, to accomplish the proper relief, the right of each complainant to contribute to and effectuate the redemption should be conditional upon satisfaction, by each complainant, of the proportionate pecuniary interest D. K. has in the lien created by the agreement of February 8, 1897, on the land allotted to the complainants, respectively, but limited in amount to the value of the land, when the agreement was made (February 8, 1897), so allotted to each of complainants.

According to the terms of the agreement of February 8, 1897, the charges for rents were restricted to two years, therein stated.. Our opinion is the chancellor erred in charging G. B. Caldwell with the amount of the rents of the “home place” from 1897 to 1912. The agreement contemplated that the rents of “1895 and 1896” should be charged up and disposed of in the final settlement of the administration in the probate court. Accordingly it does not appear that the rents or use of the “home place” should, have effect in this accounting.

Otherwise than indicated in this opinion, no fault appears in the decree appealed from. It therefore is reversed to the end only that an accounting may be had between the heirs consistent with the conclusions hereinabove set down. The cause is remanded. The costs of the appeal will be equally apportioned between the appellants and the cross-appellants.

Reversed and remanded, on both the main and cross-appeals.

Dowdell, C. J., and Sayre and Somerville, JJ., concur.