Howell v. Hughes

• Decision Date: 12 May 1910
• Parties: HOWELL ET AL. v. HUGHES.
• Court: Alabama Supreme Court

53 So. 105

168 Ala. 460

HOWELL ET AL. v. HUGHES.

Supreme Court of Alabama

May 12, 1910

Rehearing Denied June 30, 1910.

Appeal from Chancery Court, Cherokee County; W. W. Whiteside Chancellor.

Bill by B. I. Hughes, as administrator of T. F. Howell, deceased against B. C. Howell and others. From a decree from complainant, defendants appeal. Reversed and rendered.

Knox Acker, Dixon & Blackmon, for appellants.

S. C. M. Amason, for appellee.

SAYRE J.

In Hughes v. Howell, 152 Ala. 295, 44 So. 410, the bill in this cause was reviewed and declared to contain equity. After the return of the cause to the chancery court, other parties were brought in, and further proceedings had; but the general frame and prayer of the bill remained unchanged. The chancellor, constrained, doubtless, by the opinion of this court, overruled the motion to dismiss for want of equity. A plea of usury interposed by some of the defendants was also held to be insufficient. This appeal seeks to review this last decree in both of the particulars mentioned.

In the decree reviewed here on the former appeal the chancellor distinctly put his opinion that there was no equity in the bill on the ground that the petition filed by the executors in the probate court of Cherokee county for the sale of lands to pay the debts of the testator was insufficient to confer jurisdiction upon that court, for the reason that it disclosed the fact that decedent had left a will, and failed to aver that the will gave no power to the executors to sell the lands of the estate for the payment of debts. The bill having been filed to enforce the execution of the dormant decree of sale for the benefit of the estate of complainant's intestate, by way of subrogation to the rights of the creditors for payment of whose debts the lands had been decreed to be sold--intestate, as the bill alleged, having been a legatee under the will, and having first secured and afterwards paid the debts on account of which the lands were to be sold, thus obviating the necessity for a sale--and this being the sole ground of equity set out in the bill, from the chancellor's opinion that the probate decree was void, affording thereby no basis for subrogation, it followed that there was no equity in the bill. That was based upon section 155 of the Code of 1896 (section 2619 of the Code of 1907), and Wilson v. Holt, 83 Ala. 538, 3 So. 321, 3 Am. St. Rep. 768. The present appeal again urges the proposition that there is no equity in the bill, for the reason that the probate decree was a nullity.

The former opinion in this case seems to have been based upon a misapprehension of the purpose of the bill. It was there said that the amended bill sought an equitable subrogation to the lien under the decree against the estate of George W. Howell in favor of the Kirk heirs. That decree evidenced the debt which the money advanced by complainant's intestate went to discharge, and was averred in the bill for the purpose only of showing the existence of that debt. The decree in favor of the Kirk heirs did not purport to fasten a lien upon any land belonging to the estate of George W. Howell, deceased. Nor did it operate as such by reason of any rule of law. The bill there was exhibited against Samuel R. May, as administrator de bonis non of the estate of Hudson Kirk, deceased, and complainant's intestate and another as executors of the last will and testament of George W. Howell, deceased, who had been a surety on May's bond as administrator, and the decree rendered was a decree for the payment of a sum of money, running against the executors and goods and chattels of the estate in their hands. Nor is there such privity between the personal representatives and the heirs as renders a judgment against the former evidence against the latter in a proceeding to subject lands descended to them to the payment of a debt of their ancestor. Lehman v. Bradley, 62 Ala. 31; Scott v. Ware, 64 Ala. 174. "A judgment obtained by a creditor against an executor or administrator does not operate as a lien on the realty of the decedent." 17 Am. & Eng. Encyc. 785. And a further consideration of the bill as amended and the prayer for relief makes it entirely clear that the sole purpose of the complainant was to be subrogated to the alleged lien of the decree of sale rendered by the probate court. Indeed, counsel for appellee in an elaborate and learned brief attempts only to sustain the decree of the chancery court by showing the validity of the decree of sale rendered by the probate court. We will consider that question.

Since the decision of Wyman v. Campbell, 6 Port. 219, 31 Am. Dec. 677, this court has uniformly held to the doctrine that proceedings in the probate court for the sale of lands of an estate for the payment of the debts of the deceased owner are in the nature of proceedings in rem; that jurisdiction attaches when a petition stating a statutory ground for the order of sale is regularly filed and recognized by the order of the court, though parties in interest may not be personally notified of the pendency of the proceedings; and that, when the jurisdiction has attached on the filing of such a petition, all defects and miscarriages are mere errors and irregularities, which do not affect the validity of the decree subsequently rendered. The cases in this line have been numerous, so that in Satcher v. Satcher, 41 Ala. 26, 91 Am....