Banks v. Speers

• Decision Date: 14 June 1894
• Citation: 103 Ala. 436,16 So. 25
• Parties: BANKS v. SPEERS ET AL.
• Court: Alabama Supreme Court

16 So. 25

103 Ala. 436

BANKS v. SPEERS ET AL.

Supreme Court of Alabama

June 14, 1894

Appeal from chancery court, Walker county; Thomas Cobbs, Chancellor.

Bill in equity brought by William Banks against John Speers and others for an injunction and further relief. From a decree granting the injunction, both parties appeal. Affirmed.

Martin D. Burchfield died in March, 1886, a resident citizen, at the time, of Walker county. S. R. Burchfield, his son, became his administrator, by appointment of the probate court of said county, on 20th July, 1886, with Artemesia Burchfield, the widow of decedent, E. W. Miller, S. J. Childers, S. G Sherrer, and John Speers, as sureties on his administration bond. After more than 18 months had elapsed from the appointment of said S. R. Burchfield, as such administrator in chief, he resigned, without having made any settlement of his administration, and John Speers, one of the sureties on his administration bond, was appointed administrator de bonis non of the estate of said M. D. Burchfield, deceased, with F A. Gamble, T. P. Lumpkin, and W. Worthington, as the sureties on his administration bond. The bill alleges, that the administrator in chief came into possession of personal assets of said deceased, more than sufficient to pay all the debts of the estate, and a copy of his inventory of the personal effects which came to his hands is attached; that he converted them to his own use, and wasted them, and failed to pay the debts out of the personal assets; that there were only three debts existing against said estate, viz., a claim of Haynes & Gaines, copartners, and one by Solomon & Levi, as copartners, and one by B. M. Long; that said two firms obtained judgments on their respective claims against said S R. Burchfield, as said administrator in chief, the one amounting to $140.70, and the other, to $299.50, upon which judgments, executions were regularly issued, which, coming to the hands of the sheriff of said county, were by him returned "No property found," and thereupon, they brought suit against the above-named sureties, on the bond of said administrator in chief, as for a devastavit, to recover the amounts of their respective judgments against them, alleging in their complaints, the fact of their having obtained said judgments, the issue and return of executions thereon "No property found;" that said administrator had received personal assets of his said intestate, of greater value than the debts of said estate, which he had wasted and converted to his own use, and did not apply to the payment of said debts; in which suits, on the trial thereof, in the circuit court of Walker county, the plaintiffs in said judgment recovered judgments against said sureties; that said B. M. Long sued and obtained a judgment, for $100, against said John Speers, as administrator de bonis non of said estate, on his claim, an entered into a written agreement with said Speers, that it should not be collected out of him personally, and complainant, in ignorance of said written agreement, bought the judgment from Long; that Speers received sufficient assets of said decedent, to pay this debt, or by proper diligence could have received them; and it makes his said sureties on his administration bond, parties defendant, and seeks a decree against them for the amount of this judgment. It is further alleged, that the judgments against said administrator in chief, in favor of said firms of Haynes & Gaines and Solomon & Levi, have been paid, either by S. R. Burchfield, himself, or by some of his sureties, and in order to save them harmless, said Burchfield executed and delivered to two of them, the said John Speers and S. G Childers, a mortgage on certain real estate described in the bill; that neither of these judgments has been marked "Satisfied," but, by collusion of the plaintiffs in said judgments and the sureties of said administrator in chief, and said S. R. Burchfield, himself, said judgments are allowed to stand unpaid, in order that the lands which belonged to said estate, and which complainant purchased from the widow and heirs of the deceased, may be subjected to their payment, for the use and benefit of said S. R. Burchfield. It is further averred, that complainant, more than 18 months after the grant of letters of administration on said estate, purchased from the widow of said M. D. Burchfield, and his heirs,-one of whom was said administrator in chief, S. R. Burchfield,-two lots, Nos. 7 and 8, in the town of Jasper, for which he paid them $2,500, in cash, and took from them a warranty deed of conveyance; that he paid to said S. R. Burchfield, $500, as his share of the purchase money for said lots; that plaintiff entered into possession, made valuable improvements, and is now in possession of them by his tenants; that up to that time, no effort had been made by said administrator, or by any of the creditors of decedent, to subject said lands to the payment of debts, but complainant was informed by said administrator, at the time of his said purchase of said lots, that they were not subject to the debts of deceased, upon the faith of which statement, complainant purchased and paid for said lots. It is further averred, that said Speers, as administrator de bonis non, brought his action in ejectment against complainant, to recover possession of said lots, and recovered judgment against him, which, on appeal to this court, was affirmed at the November term, 1892, on grounds stated in the opinion of the court, on which judgment a writ of possession has issued and been placed in the hands of the sheriff; that said Speers, as such administrator, has filed his application, in due form, with appropriate allegations, in the probate court of Walker county, for the sale of said lots purchased by complainant from the widow and heirs of said decedent. The complainant further states, that said Speers is solvent, and the money on any or all of said judgments can be made out of him, if they have not been paid and satisfied, and it is claimed that said Speers is estopped from obtaining an order of the probate court to sell said lands to pay the debts of said deceased, and that the creditors, plaintiffs in said judgments, are estopped also; that said Speers claims there are about $1,000 due on debts of the estate, but complainant has no means of ascertaining the truth of such representations, and, therefore, he cannot pay off and satisfy any of them without a judicial ascertainment of their existence, validity and amount; but, if any claims exist which ought, in equity, to be paid, and for which said lots are liable, complainant avers he is able and willing, and offers to pay the same, so as to relieve his lots from the liability, and to save the necessary expense of a sale of them by order of court, and their sacrifice at a forced sale thereof. The heirs of M. D. Burchfield, S. R. Burchfield and the said sureties on his official bond, as administrator in chief of said estate, the sureties on the administration bond of said John Speers, as administrator de bonis non of said estate, E. H. Solomon and E. H. Levi, composing the firm of Solomon & Levi, Sylvester Gaines and T. H. Haynes, composing said firm of Haynes & Gaines, are made parties defendant to the bill. The prayer is, that the administration of said estate be removed from the probate, into the chancery court of Walker county; that the execution of the writ of possession of said land, and the proceedings in the probate court of said county, for the sale of the same to pay the debts, be perpetually enjoined; that the lands be decreed not to be subject to the payment of the debts of decedent; that before said land be decreed to be sold for such purpose, the property mortgaged by S. R. Burchfield to said Speers & Childers be sold, and the proceeds applied to the debts of deceased, if any; that if the lots of land purchased by complainant from the widow and heirs of decedent, be adjudged subject to the payment of his debts, that the amount for which they are liable be ascertained, and complainant allowed to pay the same, and that said Speers, as administrator, be perpetually enjoined from all right, possession and control of the same; that complainant be allowed to recover of said Speers and the sureties on his administration bond the amount of said judgment recovered by said B. M. Long against him, as administrator be bonis non, with interest thereon, and for general relief. Motions to dissolve the injunction, which had been granted in the case, and to dismiss the bill for want of equity, were submitted by John Speers, and each overruled by the chancellor. A motion to dismiss to want of equity was filed by said Gamble, Worthington, Lumpkin, Childers and S. R. Burchfield, and severally overruled. Said Gamble, Worthington and Lumpkin jointly, filed a demurrer on the grounds, that they were improper parties to the bill; that the...