Howell v. Randle

• Decision Date: 02 February 1911
• Citation: 171 Ala. 451,54 So. 563
• Parties: HOWELL ET AL. v. RANDLE ET AL.
• Court: Alabama Supreme Court

54 So. 563

171 Ala. 451

HOWELL ET AL. v. RANDLE ET AL.

Supreme Court of Alabama

February 2, 1911

Rehearing Denied Feb. 16, 1911.

Appeal from Chancery Court, Jefferson County; A. H. Benners Chancellor.

Bill by William J. Randle, as administrator of M. F. Howell deceased, and others, for the administration of the estate in the chancery court. H. C. Howell, a judgment creditor, having petitioned for an order of sale of certain personal property for the payment of debts, Permelia C. Howell and others filed a cross-complaint, alleging that the judgment was obtained by fraud and collusion between Howell and the administrator that the estate was not indebted to Howell, and praying a decree declaring the judgment void, and for a reference. From an order sustaining a demurrer to the cross-complaint and directing a sale, cross-petitioners appeal. Reversed and remanded.

Mayfield and Somerville, JJ., dissenting.

James A. Mitchell and James A. Bilbro, for appellants.

Ullman & Winkler and Alex C. Birch, for appellees.

SIMPSON J.

The administration of the estate of M. F. Howell, deceased, was removed from the probate into the chancery court, on bill filed by the administrator, William J. Randle. During the course of administration, H. C. Howell, one of the heirs filed a petition in said court, alleging that he had obtained a judgment against said administrator for $3,377.09 and costs, still unpaid; that "the only property which said administrator has is certain shares of stock in the Birmingham Compress Company, which is sufficient in value to discharge the indebtedness of said estate"; that said administrator has no other personal property with which to pay said claim. The petition prays for an order to show cause why said stock should not be sold for the payment of this and other debts, and that upon final hearing an order be granted requiring said administrator to sell said stock. The said administrator filed an answer to said petition, admitting the truth of its allegations, and consenting that the relief prayed be granted, and requesting that the stock be sold for the payment of all the debts of the estate. The appellants filed an answer to the petition, which they call also a cross-petition or cross-bill, alleging that said judgment was obtained by a fraudulent collusion between said administrator and said H. C. Howell, that said estate was not indebted to said Howell; and praying the court to declare such judgment void, and to have a reference to ascertain whether the estate was due said H. C. Howell in any amount, and to allow him whatever is due him. H. C. Howell and the administrator demurred to the cross-petition. Said demurrers were sustained. Cross-petitioners declined to amend, and decree was rendered dismissing the cross-petition and answer, and directing the administrator to advertise for 30 days, then sell the stock in question, report the sale for confirmation, and, after paying off all liens, charges or incumbrances, to pay said H. C. Howell the amount of said judgment and costs, with interest, and to distribute the remainder.

The first question raised is whether or not this is such a decree as will support an appeal. The decree settles all the equities between the parties, orders the property to be sold, and directs what disposition is to be made of the proceeds. This is such a final decree as will support an appeal, notwithstanding the sale of the property must be reported and the sale confirmed. Ex parte Elyton Land Co., 104 Ala. 88, 90, 91, 15 So. 939; Louisville Mfg. Co. et al. v. Brown, 101 Ala. 274, 280, 281, 13 So. 15.

The next insistence is that the court erred in overruling the demurrer to the petition of H. C. Howell, the appellant, contending that no one except the administrator has the right to apply to the court for an order for the sale of personal property of the estate, and then only by complying with the sections of the Code in regard to the sale of personal property. Code 1907, § 2606 et seq. On the other hand, the appellee insists that the provisions of the Code with regard to the sale of personal property of the estate are not binding upon the chancery court, when the estate has been removed into that court; and cites rule 113 (page 1564 of the Code). It is also further claimed that, if it be the law that no one except the administrator may apply for an order for the sale of personal property, the action of the court is error without injury, because, subsequent to the overruling of said demurrer, the administrator answered the petition admitting its allegations, and in said answer requested that the court order the sale of the personal property for the payment of all the debts of the estate. Appellee also insists that the case of Roy v. Roy, 159 Ala. 555, 48 So. 793, does not apply, because that related to real estate, and this case to personal property.

It is true that, according to the doctrine of the common law, the title to personal property passes to the administrator, while that to real property does not. According to the common law, the administrator could sell personal property without an order of court, but under our statutes and decisions he cannot. It is true, also, that the conferring of jurisdiction on the probate court does not take away the previous jurisdiction possessed by the court of equity; and our court has said that, when an estate is moved from the probate into the chancery court, "the court (of equity) proceeding according to its own practices is governed by and applies the law controlling the settlement of administration," etc. Roy v. Roy, 159 Ala. 555, 48 So. 793, and cases cited. The relation of the administrator to personal property is different from his relation to real property. The real property descends to the heirs and the personal property is in the hands of the administrator, subject to the payment of debts, though, of course, it cannot be sold by him except under the decree of the court. While section 2606 of the Code of 1907 provides that personal property may be sold only by decree of court on application in writing verified by the administrator, yet rule 113 (Code 1907, p. 1564) authorizes the chancellor, in term time or in vacation, to order the sale of any personal property in the hands of a receiver, executor, or administrator within its jurisdiction. It provides a different notice (ten days) from that prescribed by section 2606 (three weeks) of the filing of the petition, and then provides that the sales made under said orders "shall be governed by the laws applicable to sales of personal property, under orders of the probate court." We think the intention is to provide a different rule as to the formalities required for the application for the sale of personal property in the chancery court from that which is prescribed for the probate court, so that, whenever it is brought to the attention of the chancery court that the interests of all parties concerned require that the personal property be sold, said court in the exercise of its enlarged discretion, after giving to all parties in interest a proper opportunity to be heard, may lawfully order said property to be sold for the payment of the debts of the estate. While it is true that we know of no rule of law which authorizes a judgment creditor to come into court and petition for the sale of personal property of the estate, his remedy at law being complete by levying on the same property, yet, when the administrator joins in that request, it is a sufficient basis for the action of the court.

Permelia Howell et al., heirs and distributees, filed an answer to the petition, denying all the material allegations of the petition, and,...