Mancill v. Thomas

• Decision Date: 20 October 1927
• Docket Number: 3 Div. 800
• Parties: MANCILL et al. v. THOMAS et al.
• Court: Alabama Supreme Court

114 So. 223

216 Ala. 623

MANCILL et al. v. THOMAS et al.

3 Div. 800

Supreme Court of Alabama

October 20, 1927

Appeal from Circuit Court, Conecuh County; John D. Leigh, Judge.

Bill in equity by Charlotte J. Mancill and others against J.A. Thomas and others to establish a vendor's lien on land. From a decree sustaining a demurrer to the bill, complainants appeal. Reversed and remanded.

Hybart Hare & Dickey, of Evergreen, for appellants.

Hamilton & Jones, of Evergreen, for appellees.

SAYRE J.

Appellees' suggestion that the appeal should be dismissed for failure to bring in all parties to the decree, as required by section 6143 of the Code, requires no extended discussion. Appellees cite Sherrod v. McGruder, 209 Ala. 260, 96 So. 78. There are some trifling inaccuracies in the proceedings for an appeal as they appear in the transcript of the record, but it appears beyond question that the appeal is taken in the name and on behalf of all the parties complainant who alone have reason to complain of the decree, and hence that there was and is no occasion to bring in complainants as provided by the statute. The argument appears to be based upon the fact that one, only, of the appellants signed the security for costs. But that is of no consequence; all the statute requires is security and that the bond in this case, with the register's approval, be furnished. Mayfield v. County Commissioners, 148 Ala. 548, 41 So. 932.

The bill is prosecuted by the widow and heirs at law of the deceased vendor to fasten a lien for purchase money on the property (land) sold and conveyed by him. The existence of a debt for purchase money is necessary to such a lien. Walton v. Young, 132 Ala. 154, 31 So. 448. In this state the lien is not an interest in the land, but a right to charge it with unpaid purchase money. Woodall v Kelly, 85 Ala. 368, 5 So. 164, 7 Am.St.Rep. 57. And in our better cases it is said to have its foundation in the broad principle of equity that it is unconscientious to allow one who gets the estate of another to keep it without paying the consideration. Pylant v. Reeves, 53 Ala. 132, 25 Am.Rep. 605. The legal title to personal assets is in the personal representative, and his title and right of possession is exclusive in law, and, as a general rule, he is the only party entitled to sue for them. The interest of the distributees is equitable only. Wood v. Cosby, 76 Ala. 557. When not needed for administration, or when an administration is wholly unnecessary, or decedent's personal property has gone, without administration, where it rightfully belongs and would go in the due course of administration, the naked legal title will not prevail in equity, Kennedy v. Davis, 171 Ala. 609, 55 So. 104 Ann.Cas.1913B, 225. The vendor's lien for unpaid purchase money, being a chose in action, goes to the executor or administrator, and not to the widow or heirs as such. 1 Woerner's Am.Law of Adm'r (2d Ed.) marginal page 596. And in the absence of a showing that no administration is necessary, it would seem that the bill in this case should have been exhibited by the personal representative. This specific objection to the bill was not taken in the trial court, but is now urged in brief and should be sustained, if well grounded in the law. Prout v. Hoge, 57 Ala. 32; Carwile v. Crump, 165 Ala. 208, 51 So. 744. It is, however, sufficiently answered by the averments of the bill that J.E. Mancill died intestate, and that:

"There are no debts due and owing by the estate of the said J.E. Mancill, deceased [vendor], and there has been no administration thereon." Fretwell v. McLemore, 52 Ala. 124.

It may be well to note also that there is in the matter of the vendor's lien nothing to distinguish an exchange of lands from a sale, or to deny to the vendor a lien to the extent of the value of the land to be conveyed to him--agreed value in ...