Lindsay v. Cooper

• Decision Date: 06 January 1891
• Citation: 94 Ala. 170,11 So. 325
• Parties: LINDSAY v. COOPER ET AL.[1]
• Court: Alabama Supreme Court

11 So. 325

94 Ala. 170

LINDSAY v. COOPER ET AL.^[1]

Supreme Court of Alabama

January 6, 1891

Appeal from chancery court, Colbert county; THOMAS COBBS Chancellor.

Bill by Emma L. Lindsay against Mary K. Cooper and others. From a decree refusing the relief prayed, complainant appeals. Reversed.

J B. Moore and R. C. Brickell, for appellant.

Roulhac & Nathan, for appellees.

McCLELLAN J.

It is sought by the bill in this case to declare and enforce a trust against the respondents in respect of a one-third undivided interest in a certain quarter section of land to which they have the legal title, and which they have been in possession of actually or by privity, since 1870. Complainant's theory is that she has a perfect equity in and to that interest; that the respondents hold the legal title in trust for her, and should be decreed to execute that trust by vesting title in her, and held to account for rents and profits accruing pending the existence of the trust. The facts are complicated, but the evidence which goes to establish them is substantially free from conflict. We encounter no difficulty in finding them to be as follows, so far as material: William H. Price became seised and possessed of the land in fee simple absolute about the year 1853, and continued in its occupancy for four or five years. In 1857 or 1858 he sold the land by executory contract to Isaac H Walker, and put the purchaser in possession. Early in 1860, Walker died, without having paid the purchase money to Price, and without having received a conveyance of it. Price became Walker's administrator, and in that capacity took possession of the tract in controversy, together with other lands held by the intestate, and applied to the probate court for an order to sell all these lands for the payment of decedent's debts. An order of sale was made, and, acting under it, Price sold, on December 17, 1860, all of said lands as the property of the intestate. At this sale Thomas E. Winston became the purchaser of the quarter section in question. In accordance with the terms of the sale the purchaser executed his several notes, with sureties, for the purchase money, and Price executed to him a bond for title, binding himself, as such administrator, to convey all the right, title, and interest of the intestate upon payment of the purchase money notes. Winston was let into possession immediately, and rented the land for the year 1861 to John A. Steele. Steele was a surety on the notes given by Winston to Price as Walker's administrator. At the close of 1861, Steele and Winston had a parol understanding and agreement by the terms of which the former was to take the land off Winston's hands, and assume and pay the purchase-money notes as they matured. Under this agreement, Steele continued in possession and cultivation of the land as the owner of it until 1870, but paid nothing on the notes. Meantime Price died in 1865, without asserting any individual claim or title to the land, and without taking any steps as Walker's administrator to collect the notes of Winston. On December 18, 1865, Theophilus A. Jones qualified as administrator of Price's estate, and soon afterwards reported and had the estate declared insolvent; but it does not appear that he advanced any claim to this land prior to 1870. Winston died in 1869; and in 1870, Steele delivered the possession of the land to Jones, as Price's administrator, by whom it was sold as assets of Price's estate under probate order on April 24, 1872, to Clark T. Barton, the sale being regularly reported and confirmed, and conveyance executed to the purchaser as ordered by the court. The respondents, Mary K. Cooper, Minerva Winston, and Calvin G. Jackson, held by mesne conveyances from said Barton. After Price's death one Weatherford became the administrator de bonis non of the estate of Isaac Walker. Weatherford having died this administration was committed to Abner W. Ligon, general administrator for the county of Franklin on January 25, 1869. It does not appear that either Weatherford or Ligon ever made any efforts to realize on the Winston notes by proceedings against the makers thereof personally, or against the land, until 1872. Then Ligon, as administrator of Walker, filed a statement of the notes as a claim against the estate of Thomas E. Winston. Lewis B. Thornton, having qualified as administrator de bonis non of Winston's estate, reported the same insolvent, and a decree passed so declaring. The claim by Ligon was filed while the estate of Winston was being administered under this decree as insolvent, and, pending this state of things, Ligon obtained an order to sell the Winston notes, along with other claims belonging to Walker's estate. At a sale under this order John E. Moore bought these notes at the price of $50, which was distributed to the creditors of Walker's estate, and was let in to the representation of the claim based upon them against Winston's estate. This claim was contested by Winston's administrator, but whether meritoriously or not we are not advised, as the objection was held not to have been seasonably made, and the estate was upon that ground adjudged to be liable for it, (see Thornton v. Moore, 61 Ala. 347;) and the administrator compromised it with Moore by paying $1,100 therefor. It appears, further, that no cognizance was had of this land, or the interest of Winston in it, in the administration of his estate. It was not administered. The estate, though declared insolvent, was not so in fact, or, rather, by compromises and the like, affected by Thornton with creditors, their demands were satisfied, and a considerable sum remained, which was distributed to the intestate's children. The present complainant is one of these children. There are two others who do not join in this bill. The complainant was born in March, 1864, and filed this bill September, 10, 1887, within three years after attaining her majority.

Whether or not Price and his privies are estopped to assert his legal title against Winston and those claiming under him, and among the rest, the present complainant, is a prominent, if not, indeed, a vital, question in the case. The facts specially bearing upon this inquiry, which have not before been adverted to, are the following: In his petition to the probate court for an order to sell this along with other land as the administrator of Walker, Price alleged that his intestate died "seised and possessed" of all the land sought to be sold; and this averment is not in any manner qualified by the statement of any other fact of circumstance in limitation of Walker's ownership. There is no intimation that Price himself and in individual capacity held the legal title, naked or otherwise, or any beneficial interest in the land, or any lien for the unpaid purchase money. The order of sale which passed in response to this petition is likewise without intimation that any less estate than an unincumbered fee in the land was to be sold. The sale under this order was made by Price in person. It is not pretended for respondents that at the time and place of the sale, or at any other time and place, Price advanced, asserted, or made known in any manner to those present at the sale, or to Thomas E. Winston, who then purchased the land, that he, Price, had the legal title to the land, and a lien upon it for the purchase money due from Walker to him, or either, or that any other or less estate than the unincumbered fee was in the estate of his intestate or intended to be passed by the sale he was then making. To the contrary, this record cannot be read without enforcing the conclusion that he gave no notice whatever of his personal title or interest or claim in and to the property. Persons present at the sale testify that the land was sold by Price as the property of Walker's estate. The bond for title which he executed in his representative capacity to Winston recites that the land was sold as Walker's, and evidences an undertaking to convey the title thereto as fully as it was vested in the obligor as Walker's administrator; and all this may be looked to, not, indeed, as importing an estoppel by the bond, but as admissions of Price against interest going to negative any reservation or notice of his personal interest at the sale to Winston. And, beyond all this, the uncontroverted evidence is that Winston purchased the land at its full market value, bidding therefor $15.02 per acre, amounting to $2,403, for the 160 acres, and executed his note for that sum. Moreover, the report of the sale imports no intimation that any less than an unincumbered fee in the land was sold. On these facts,-that Price alleged the seisin and possession of his intestate of the land, he asked for an order to sell, thereby importing a purpose to sell an estate in fee, (McKenzie v. Baldridge, 49 Ala. 564;) that there is nothing in the petition, or the order of sale, or report of sale, or bond for title, or the notes accepted by Price, in any degree indicating that less than the fee was intended to be or was in fact sold; that, on the contrary, the manifest implication, from each and all of these papers, is that Walker's estate was in the unincumbered ownership of the land; that those present at the sale and who testify in this case in no wise suggest that any notice was given by Price of any individual interest or claim on his part, and that the land fetched its full market value, (more, indeed, per acre than the other lands of the estate lying adjacent to it,) as appears from the report of sale,-we cannot, without the greatest violence to the probative force of evidence, reach any other conclusion than that Price, selling the land in person, as Walker's administrator, gave no notice or intimation whatever of his individual...