Banks v. Speers

• Decision Date: 23 November 1892
• Citation: 97 Ala. 560,11 So. 841
• Parties: BANKS v. SPEERS.
• Court: Alabama Supreme Court

11 So. 841

97 Ala. 560

BANKS v. SPEERS.

Supreme Court of Alabama

November 23, 1892

Appeal from circuit court, Walker county; JAMES B. HEAD, Judge.

Action by John Speers, administrator de bonis non of the estate of M. D. Burchfield, deceased, against William Banks, brought under the statute to recover certain lots conveyed to defendant by the widow and heirs of the intestate, and which formerly constituted his homestead. From a judgment for plaintiff, entered on a verdict directed by the court defendant appeals. Affirmed.

Smith & Lowe and W. B. Appliht, for appellant.

Coleman & Sowell, for appellee.

STONE C.J.

This is a statutory real action brought by Speers, as administrator de bonis non of M. D. Burchfield, deceased, to recover of William Banks et al. lots 7 and 8 in the town of Jasper Walker county. The plaintiff recovered, and Banks appeals. In the spring of 1886, M. D. Burchfield died, having a family consisting of a wife and children, two of the latter being minors. He, with his family, resided on the lots in controversy, having his homestead there. The lots, with their improvements, at that time, and during all that year, were worth less than $2,000. On the 20th day of July, 1886, S. R Burchfield was appointed and qualified as administrator of the estate of M. D. Burchfield, deceased; John Speers, plaintiff in this suit, being one of the sureties on his bond as such administrator. On the 14th day of August, 1886, Artemissa Burchfield, widow of M. D. Burchfield, deceased, made a written, sworn claim of homestead exemption, in favor of herself and of her two minor children, of said two lots 7 and 8, and, in the presence of the administrator, filed it in the office of the judge of probate. The court was not then in lawful session. She, with her said children, continued to reside on said lots without molestation until March, 1888, when she contracted to sell them to William Banks for $2,500. She made this contract in the names of herself and minor children, and immediately surrendered possession to Banks, and, together with her children, removed permanently from the premises. On the 2d day of July, 1888, the minor children having become adult, she, together with all her children, the heirs at law of said M. D. Burchfield, executed to Banks a conveyance of said lots in fee, with customary covenants of warranty. At the time of M. D. Burchfield's death a suit was pending against him in Walker county circuit court. This suit was revived against S. R. Burchfield, administrator in chief, and in February, 1888, judgment was recovered against him as such administrator for $220. Two other judgments were rendered against said S. R. Burchfield, as administrator of M. D. Burchfield, before justices of the peace, the two amounting to about $150. These judgments are still unpaid. On the 2d day of November, 1891, S. R. Burchfield resigned as administrator, and five days afterwards John Speers was appointed and qualified as administrator de bonis non. On the 27th day of December, 1891, a judgment was recovered against him as administrator aforesaid for $95. There are no other debts of the estate of M. D. Burchfield that are not barred, either by nonclaim, or by the statutes of limitation; and there are not shown to be any personal assets remaining in specie. If any personal assets of the estate ever went into the hands of S. R. Burchfield, administrator in chief, or into the hands of Speers, administrator de bonis non, the record is silent on the subject. The estate of M. D. Burchfield has never been declared or reported insolvent, and the sureties of S. R. Burchfield on his administration bond are solvent. The present suit was instituted November 9, 1891, and is a suit by the administrator de bonis non to recover the possession of the lands, in his mere right as administrator.

We have held that the administrator, as such, is clothed by our statutes with a right to the possession of the realty for purposes of administration, and that that right, when asserted by him, dominates and intercepts the descent of the lands to the heir. Calhoun v. Fletcher, 63 Ala. 574; 3 Brick. Dig. p. 464, § 146. This right, however, cannot interfere with the rights of dower, quarantine, and homestead. Id. This power and right of possession spring naturally and necessarily out of our statutes as found in various sections of our Code now known as the "Code of 1886." The same provisions are shown in the Code of 1876, and the numbers of its sections are stated in parentheses. The descent of lands is "subject to the payment of debts." Section 1915, (2252.) The bond of the personal representative must be "in a penalty equal to at least double the estimated value of the real and personal property of the estate." Section 2024, (2365, 2366.) "All the property of the decedent, except as otherwise provided, is charged with the payment of his debts." Section 2078, (2429.) "Lands of decedent may be rented by the personal representative," and "such rent is assets." Section 2102, (2446.) The estate of a decedent can be declared insolvent only "when the real and personal property is insufficient for the payment of the debts." Sections 2222-2224, (2549-2551.) In reporting an estate insolvent the report must contain, not only a statement of the personal effects, but also "a full statement of the real property of the deceased, or any interest therein, and the local situation and estimated value thereof." Section 2224, (2551.) So, lands under our system are, in the fullest sense, assets of the decedent's estate for the payment of his debts.

It is contended for appellant that by suffering judgments to go against them in their representative capacity on debts of their intestate, M. D. Burchfield, both the administrator in chief and the administrator de bonis non must be held to have admitted that the estate had assets sufficient to pay those debts; that this, as against them, is a conclusive presumption, and that they will not be heard to deny it. The contention takes a further step, and claims that the sureties on their bonds are also concluded by those recoveries, and that they, too, are estopped from denying that their principals had sufficient assets to pay the judgments they permitted to be rendered against them. Based on these assumptions, it is contended that there being no debts against the estate other than those in judgment, and it being thus conclusively shown and ascertained that sufficient assets went into the hands of the administrators to pay them, no ground exists authorizing the sale of the lands for the payment of debts, and consequently the present plaintiff has no right to recover the possession of the land. It is certainly true that the lands of a decedent will not be ordered to be sold for the payment of debts when there are no debts of the estate to be paid. The existence of debts to be provided for is a jurisdictional inquiry. So, if there be sufficient personal assets to pay the debts, there can be no order for a sale of the lands for their payment. Code 1886, § 2103; Owens v. Childs, 58 Ala. 113; Lee v. Downey, 68 Ala. 98. Of course, this principle does not apply if there be a will giving authority to sell lands, in preference to personal property, for the payment of debts.

The question to what extent a judgment or decree rendered against a personal representative in his representative capacity is binding on him and on his sureties has been very often considered by this court. It has always been held that such judgment or decree, if permitted to stand, is conclusive on the principal, the personal representative, of the amount due and owing from him as such representative, and that he has in his hands sufficient assets for its payment. These presumptions he will not be heard to gainsay or deny. As to the effect upon his sureties, a distinction was taken at an early day between decrees rendered against the representative in the orphans' or probate court on settlements made therein and judgments rendered against him on debts or liabilities of his testator or intestate. In cases falling within the first class-decrees on settlements in the probate court-it has been uniformly ruled that the sureties were bound and concluded by the decree rendered precisely and to same extent as their principal was bound. Judge of Limestone County Court v. Coalter, 3 Stew. & P. 348; Burke v. Adkins, 2 Port. (Ala.) 236; Slatter v Glover, 14 Ala. 648; Chilton v. Parks, 15 Ala. 671; Lamkin v. Heyer, 19 Ala. 228; Kyle v. Mays, 22 Ala. 692; Holley v. Acre, 23 Ala. 603; Seawell v. Buckley, 54 Ala. 592; Glenn v. Billingslea, 64 Ala. 345; Hailey v. Boyd, Id. 399. One reason given for this ruling, and a very strong one, was and is that in settlements in the probate court the receipt of assets by the representative, the amount received, and the surplus, after allowing all proper disbursements, are the very questions considered and passed upon. They constitute the basis of the decree. And the form of the decree is another reason. It is not that the sum be levied and collected of the property and effects of the testator or intestate, in his hands to be administered; it is that he pay the amount decreed, for the presumption is that he has converted the assets into money. In suits against the personal representative to enforce a debt or liability of his testator or intestate, the issue is different. The question in such case is the decedent's liability vel non; and the inquiry of assets in the representative's hands is not one of the issues presented. The recovery is not against the administrator personally, but to be levied on the goods and chattels of the decedent, in his hands to be administered. Hence, in all our early decisions it was held that such recovery did not conclude...