Finlay v. Kennedy
| Decision Date | 18 December 1947 |
| Docket Number | 4 Div. 453. |
| Citation | 250 Ala. 33,32 So.2d 883 |
| Parties | FINLAY v. KENNEDY. |
| Court | Alabama Supreme Court |
Oliver W. Brantley, of Troy, and Lightfoot & Bricken, of Luverne, for appellant.
D M. Powell and Powell & Hamilton, all of Greenville, for appellee.
This is an appeal from a decree overruling the demurrer to a bill in equity. Emma Kennedy, as administratrix of the estate of John G. Kennedy, deceased filed her bill of complaint to sell for division 220 acres of land described in the bill by government numbers. The joint owners or tenants in common of the lands are the heirs at law of John G. Kennedy, deceased, who owned the lands in fee simple at the time of his death. The names of the heirs at law are set forth and the interest of each in the lands is shown. Some of the heirs at law are alleged to own an undivided one-tenth interest each and some an undivided one-twentieth each.
The bill alleges 'that there is an outstanding indebtedness owing by the estate of said John G. Kennedy, deceased amounting to to-wit, Five Hundred sixty-six ($566.00) Dollars secured by mortgage on a portion of said land held by J. W Williams.' J. W. Williams was also made a party respondent. Examination of the description of the lands shows that the lands are divided into several separate tracts.
It is further alleged that the lands cannot be equitably divided among the joint owners and tenants in common and that it is necessary to sell the lands for division among them. Basil Kennedy, one of the heirs of John G. Kennedy, deceased, and one of the joint owners and tenants in common filed his written consent for the bill to be filed for sale of the land for distribution of the proceeds among the joint owners and tenants in common.
The bill also alleges that the personal property of the estate is insufficient to pay the indebtedness owing to J. W. Williams and that out of the proceeds of the sale of the lands there should first be paid said mortgage indebtedness and also the cost and expense of administration. The bill prays for a sale for division among the joint owners and tenants in common and also for the purpose of paying the indebtedness owing to J. W. Williams and the costs and expense of administration.
Maude Finlay, the appellant, one of the heirs at law of John G. Kennedy, deceased, filed her separate demurrer. From a decree overruling her demurrer she brings this appeal.
There is nothing in the bill to show what part of the lands is embraced in the mortgage to J. W. Williams. Is the bill subject to demurrer in this respect? In passing on the question, we must deal with the allegations of the bill before us. Taking these allegations as true, as we must on demurrer, there are some things which show no need for alleging in the bill the lands embraced in the mortgage, while there are other matters which seem to us to require the allegation.
It affirmatively appears that the mortgage debt is an indebtedness owing by the estate of a deceased person and therefore all the lands of the decedent are subject to the payment of the debt and not just the lands embraced in the mortgage. Morgan v. Watkins, 214 Ala. 671, 108 So. 561. In this connection we take the allegations as showing a general claim against the estate since failure to comply with the statute of nonclaim must be pleaded defensively. Dirago v. Taylor, 227 Ala. 271, 150 So. 153; Kornegay et al. v. Mayer, Admr., 135 Ala. 141, 33 So. 36; Buchmann v. Turner, 221 Ala. 563, 130 So. 196; May, Adm'r v. Parham, Adm'r, 68 Ala. 253. While it is true that there may be other creditors, who will share in the proceeds of the sale to the detriment of the holder of the mortgage, the bill does not show other creditors or that the estate is insolvent. So far there appears to be no need to show the particular property embraced in the mortgage.
But we must proceed further. There is a line of cases in this state which hold that when the sale is in the probate court, only the equity of redemption can be sold. Denman v Payne, 152 Ala. 342, 44 So. 635; McKenzie v. Matthews, 153 Ala. 437, 44 So. 958. Accordingly there, the property must be sold subject to the mortgage. And it might be that the equity court would decide to sell the lands in this manner. For reasons which we shall amplify later, when the...
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Ellis v. Stickney
... ... 347, 182 So. 43; Thompson v ... Heiter et al., 238 Ala. 549, 192 So. 282; Holmes v ... Riley et al., 240 Ala. 96, 196 So. 888; Finlay v ... Kennedy, 250 Ala. 33, 32 So.2d 883; Betts et al. v ... Betts, 250 Ala. 479, 35 So.2d 91; Grisham et al. v ... Grisham et al., supra ... ...
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