Griffith v. Rudisill
| Decision Date | 12 May 1904 |
| Citation | 141 Ala. 200,37 So. 83 |
| Parties | GRIFFITH v. RUDISILL. |
| Court | Alabama Supreme Court |
Appeal from Chancery Court, Geneva County; Thos. H. Smith Chancellor.
Bill by Hubbard Rudisill, executor of the estate of John C. Woodward deceased, against Walter Griffith. From a decree for complainant, defendant appeals. Affirmed.
Abrahams & Simon, for appellant.
Harwood & McKinley, for appellee.
The bill was filed in the chancery court of Green county by Hubbard Rudisill, as executor of John C. Woodward, deceased against the defendant and appellant, Walter Griffith, having for its object the enforcement of the equity of redemption of the mortgage attached to the bill as Exhibit D, known in the pleadings as the Glover mortgage.
There was a demurrer interposed on several grounds, which was overruled, and the only error insisted on is, that the executor,--the will of the testator having conferred on him no special power to that end,--was without power to redeem the land in question from said mortgage. Defendant's counsel say in their brief, that this is the only question presented for review, and no other is insisted on.
The bill shows that the testator died on the 1st day of December, 1902; that the will was filed by complainant in the probate court of Green county, for probate, on the 3d day of December, 1902, and was duly probated on the 5th of January, 1903; that on the 7th of that month, the complainant qualified as executor of said will, and took upon himself the administration of said estate, which is now in course of administration in said probate court. It is further shown, that on the 2d of December, before the burial of the body of the testator, the defendant proceeded to advertise for sale the lands in question, under a power of sale in an old mortgage, which as alleged, had been fully setled and paid by testator, and on the 29th of the same month, sold said lands under said mortgage, and through his agent became the purchaser of said lands for $611, and caused deeds to be executed, so as to convey the title to himself; and thereupon, took possession of said lands, and rented out a large part of them, and is now, by himself and tenants, in possession of all of said lands, claiming to own the same. It is further averred, that the foreclosure under said mortgage which had been fully paid, was a fraudulent device, gotten up to defraud and deprive the estate and heirs of deceased of said lands. This bill was filed, for the purposes stated, on the 11th day of February, 1903.
Upon the death of the owner real estate passes, as at common law, to the devisee of the testator or heirs of the intestate, subject to be intercepted by the exercise of the personal representatives, of the power conferred on them by statute in the mode and for the purposes expressed,--to pay debts, or to effect an equitable division between the heirs or devisees. L. & N. R. Co. v. Hill, 115 Ala. 345, 22 So. 163; Stovall v. Clay, 108 Ala. 105, 20 So. 387; Banks v. Speers, 97 Ala. 560, 11 So. 841.
By statute in this state, the powers of an executor or administrator at common law as to the lands of a decedent, have been greatly extended. He may rent the decedent's lands, publicly or privately, as provided by section 154 of the Code of 1896. Lands may be sold by an executor, or by an administrator with the will annexed, for the payment of debts, when the will confers no power to sell for such purpose, or in case of intestates, when the personal estate is insufficient for the purpose. Code 1896, §§ 155, 156. He may also petition and have the lands of the estate sold, when the same cannot be equitably divided among the heirs or devisees. Sections 157, 158, Code 1896.
Executors and administrators are also required to give bond with sureties in a sum not less than double the value of the...
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...or seeking the possession of the lands of the estate. Dallas Compress Co. v. Liepold, 205 Ala. 562, 568, 88 So. 681; Griffith v. Rudisill, 141 Ala. 200, 37 So. 83. it requires appropriate action by the personal representative "to divest the heir of his right to the inheritance"; in the abse......
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...are not necessary parties. Carey v. Brown, 92 U.S. 171, 23 L.Ed. 469; Braley v. Spragins, 221 Ala. 150, 128 So. 149, 150; Griffith v. Rudisill, 141 Ala. 200, 37 So. 83; King v. Seals, 45 Ala. Another principle is that, when a suit in equity involves the title to real estate, begun by a trus......
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O'Rear v. O'Rear
... ... St. Rep. 231; Haussman v. Burnham, 59 ... Conn. 117, 22 A. 1065, 21 Am. St. Rep. 74. But it does not ... apply to a bill for redemption. Griffith v ... Rudisill, 141 Ala. 200, 37 So. 83 ... Without ... having as parties either the devisees or heirs, as the case ... may be, the ... ...
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