Burke v. Cunningham

• Decision Date: 19 January 1928
• Docket Number: 1 Div. 462
• Citation: 217 Ala. 188,115 So. 182
• Parties: BURKE v. CUNNINGHAM et al.
• Court: Alabama Supreme Court

115 So. 182

217 Ala. 188

BURKE v. CUNNINGHAM et al.

1 Div. 462

Supreme Court of Alabama

January 19, 1928

Appeal from Circuit Court, Mobile County; Saffold Berney, Judge.

Bill in equity by S. Walter Cunningham against J. Blocker Thornton as administrator of the estate of Edward L. Cunningham deceased, W.P. Burke, and Charles A. Cunningham. From a decree overruling demurrer to the bill, respondent, Burke appeals. Affirmed.

Gordon Eddington & Leigh and Edward W. Faith, all of Mobile, for appellant.

Harry T. Smith & Caffey, of Mobile, for appellees.

SAYRE J.

The circuit court, sitting in equity, overruled appellant's demurrer to appellee's bill of complaint. This appeal followed. The averment of the bill is: That complainant appellee, S. Walter Cunningham, and the defendant Charles A. Cunningham were surviving brothers and sole heirs at law and distributees of Edward L. Cunningham, deceased. That the deceased was a lunatic, and the defendant Charles A. Cunningham had been his guardian. Edward L. died in 1925, and thereafter, in 1927, upon the final settlement of the guardianship in the probate court, decree was rendered in favor of the administrator of his estate against Charles A. for $18,212.69. That in 1926, after the death of Edward L. and before the decree against his guardian, Charles A. had executed a mortgage to appellant, W.P.

Burke, upon his one-half interest in certain real estate which the mortgagor claimed to have inherited from his deceased brother, Edward L., and the bill in this cause was filed by appellee S. Walter Cunningham to subject that interest in the real estate to the payment of the balance ascertained by the decree to be due by Charles A. to the estate of the deceased brother. Charles A., it seems, claimed by inheritance only. Appellant's demurrer to the bill took many grounds of objection, or, more accurately speaking, perhaps, appellant's objection to the bill was stated in many different forms. Stated as briefly as may be, appellant's demurrer, conceding that the legal title to the one-half interest in the real estate in question had descended to his mortgagor subject to debts due by the deceased, took the point that the said real estate was not subject to the debt due by his grantor to the estate of his grantor's ancestor; that the debt due by his mortgagor was secured at best by a mere equity in favor of his coheir, appellee, and did not prevent the legal title vesting in the mortgagor; that, so far as the bill goes to show, appellee's equity is a secret equity, since no visible facts are averred to put appellant on notice; that neither the fact that appellant's grantor acquired his title by inheritance nor the fact that appellant's grantor had been guardian of the deceased ancestor sufficed for that purpose; and, in conclusion, that appellant is entitled to protection as a bona fide purchaser.

Pretermitting the question whether appellant's defense by way of demurrer be properly presented in the absence of an averment in the bill of notice in fact that appellant's mortgagor was indebted to the ancestor's estate, because the general rule is that the defense of bona fide purchaser must be set up by way of plea or answer (Hatter v. Quina, 216 Ala. 225, 113 So. 47), the answer to the whole body of the objections taken against appellee's bill is that, under the rule of law heretofore established by this court, appellant's mortgagor took by inheritance a title, subject, not only to debts due by the deceased, but to debts due by the mortgagor to the estate of deceased, and appellant took his security subject to the same infirmity. This court--evidently after most careful consideration--has declared, to quote the first headnote to the case to be cited:

"Where an heir is indebted to his ancestor while living, and continues indebted to his estate after his death, the other heirs of the ancestor have an equitable lien upon the lands of decedent for the debt which said heir owes the estate, which

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