58 Ala. 325 (Ala. 1877), McCully v. Chapman

• Citation: 58 Ala. 325
• Opinion Judge: BRICKELL, C.J.
• Party Name: McCully v. Chapman, Adm'r.
• Attorney: JOHN F. VARY, for appellant. D. S. TROY, contra.
• Court: Alabama Supreme Court

Page 325

58 Ala. 325 (Ala. 1877)

McCully

v.

Chapman, Adm'r.

Supreme Court of Alabama

December Term, 1877

Bill in Equity to enforce Vendor's Lien.

APPEAL from Chancery Court of Perry.

Heard before Hon. CHARLES TURNER.

The appellee, John H. Chapman, as administrator de bonis non of one J. G. Cole, deceased, filed this bill against the appellant McCully, and one Mathews. The bill alleged that Cole died testate in Perry county, seized and possessed of certain lands. His will was duly admitted to probate, and the persons named in it as executors, qualified, but one of them resigned, after making final settlement with the probate court, and the other afterwards had the estate declared insolvent, settled her administration, and resigned. Appellee was appointed administrator de bonis non, and took possession of the lands in controversy. The probate court made an order of sale, and Chapman exposed the lands for sale in accordance therewith, Mrs. McCully becoming the purchaser for the sum of $7.50 per acre, or $6,900 for the tract of land. The order required the sale to be made for cash. Mrs. McCully was unable to comply, but requested Chapman to let her have possession so that she could cultivate the lands the ensuing year, and indulge her in the payment of the purchase-money until December of the next year. Chapman consulted with the creditors, and they agreed to let Mrs. McCully remain in possession, provided she would pay $1.50 per acre, in addition to the purchase-money, for the rent of the land that year. Mrs. McCully thereon assented to the arrangement, and gave the administrator her promissory note for the purchase-money, and the amount charged as rent, payable December 1st, 1871. Mrs. McCully entered into possession and still retains it, having made some payments on the note; but no deed has been made to her. The bill alleged that Matthews claimed some interest in the lands, asserts that the complainant has a vendor's lien on the lands, and prays that they may be sold for the payment of the balance due on the note.

Mrs. McCully demurred to the bill, assigning as grounds: 1st, that the sale was not made in accordance with the order of the probate court, and that the sale and note given for the purchase-money are void; 2d, that the bill seeks to enforce a private sale of lands made by the administrator in violation of law; 3d, that it appears complainant has and can convey defendant no title if payment of the purchase-money is enforced; 4th, because complainant has no lien. She also demurred to so much of the bill as sought relief on the amount of the $1.50 per acre rent, on the ground that it was a device to exact usury, for forbearance on the debt created by her bid.

This demurrer was overruled. She afterwards demurred on the ground that the sale was never reported to or confirmed by the probate court, but no action seems to have been taken on this demurrer. A decree pro confesso was taken against Matthews. Mrs. McCully's answer admitted the main allegations of the bill, but denied that complainant was entitled to relief, setting up some outside matters about the reason of her failure to get some money due her, with which she expected to pay the amount of her bid, and averred that the rent per acre she agreed to pay was really for forbearance on the debt, and not for rent, as the lands were not worth that rent. The testimony, however, shows that she was mistaken in this, and that the arrangement which she made about rent was not a usurious device, but a condition imposed by the creditors, whom the administrator consulted about allowing her to take the lands and postpone payment for a year, who were anxious as well as she not to have a resale, and at the same time not to lose rent for the year. The will of Cole is not made part of the pleadings or evidence.

The Chancellor decreed that complainant had a lien on the lands for the amount of the purchase-money and interest thereon, and directed a sale of the lands to enforce the lien. The overruling of the demurrer and the decree rendered are now assigned for error.

JOHN F. VARY, for appellant.--Chapman had no title, and could convey none. The probate court never confirmed the sale. The order of sale was for cash, the sale made was on a credit. It was in plain violation of the statute, a flagrant violation of duty, and no rights could arise under it. The administrator and creditors could not confirm the sale--that power was vested in the court alone. The order of the court of chancery was in effect a confirmation of that void sale at the instance of the administrator, without giving the heirs a hearing. Has not the probate court the exclusive right of confirming a sale, when the administration is still in that court?

D. S. TROY, contra.--Mrs. McCully is in possession under the contract, and she can not keep the land and at the same time avoid the sale.--7 Ala. 170; 9...