McGhee v. Alexander

• Decision Date: 10 August 1894
• Citation: 104 Ala. 116,16 So. 148
• Parties: MCGHEE ET AL. v. ALEXANDER ET AL.
• Court: Alabama Supreme Court

16 So. 148

104 Ala. 116

MCGHEE ET AL. v. ALEXANDER ET AL.

Supreme Court of Alabama

August 10, 1894

Appeal from chancery court, Cherokee county; S. K. McSpadden Chancellor.

Bill by P. W. Alexander and others against E. T. McGhee and others. There was a decree for plaintiffs, and defendants appeal. Affirmed.

The bill in this case was filed on March 20, 1890, by the appellees, the children and heirs at law of M. J. Alexander deceased, to enforce a vendor's lien on certain lands which were sold by the complainants' intestate to Thomas Holcomb. After the purchase of said lands by said Thomas Holcomb, he continued in possession thereof up to the time of this death, which occurred in January, 1886. John L. Barnett was appointed the administrator of the estate of said Thomas Holcomb, and as such administrator sold, under an order of the probate court, the lands belonging to said estate, among which were the lands involved in this controversy; and at said sale one E. T. McGhee became the purchaser, to whom the deed was made, and from whom the lands were purchased by one Allen Sheers. It was alleged in the bill that administrator of said Thomas Holcomb, deceased, the said McGhee, and Sheers had notice of the nonpayment of the said duebill, which had been executed by the said Thomas Holcomb to the said M. J Alexander. The said Barnett, as the administrator, the said McGhee, the said Sheers, and Edward Holcomb, the only heir at law of said Thomas Holcomb, deceased, were made parties defendant to the said bill. By amendment the surviving husband of M. J. Alexander was made a party complainant.

J. L. Burnett, for appellants.

Hugh W. Carden, for appellees.

BRICKELL C.J.

The bill is filed to enforce the lien of a vendor for the unpaid purchase money of lands. The written instrument, the evidence of the debt, is in these words: "Due M. J. Alexander, six hundred and twenty-five dollars, balance due on lands, which she and her husband, John B. Alexander, has made me a deed to, in which Nos. described. This to be paid when we settle. This Feby. 2nd, 1880. [Signed] Thos. Holcomb." The bill, as amended, is filed by the surviving husband and the children of the payee, who died intestate, having her domicile in the state of Georgia. Under the statute of Georgia, which is set out in the bill, the husband and the children of a married woman dying intestate succeed to her personal property, share and share alike. The bill avers that there has been no administration on the estate of the intestate; that she was free from debt, and the only purpose of an administration would be the distribution of the debt when collected. It is alleged in the amended bill that the intestate made repeated efforts to procure the settlement referred to in said writing, as did her husband for her, which were unavailing. That the intestate was not indebted to said Holcomb, and the settlement referred to was a settlement between the husband and said Holcomb. There is an averment of a readiness and willingness to pay whatever, if anything, may be due from the intestate to said Holcomb. It is further averred that the interest of the intestate in the lands sold said Holcomb was one-fourth interest; that said lands were sold for the aggregate sum of $2,900; that the writing was given for the deferred payment of the purchase money of the land by the agreement of all the parties to the sale, $100 of the fourth of the aggregate purchase money having been paid her in cash. There were numerous demurrers interposed to the bill as amended, which, for convenient consideration, may be orderly arranged as follows: (1) That the personal representative of the intestate only can maintain a suit to enforce the lien asserted in the bill; (2) that the amended bill is a departure from the original bill; (3) that the bill was prematurely filed, a settlement not having been made between the intestate and said Holcomb; (4) that the allegations of the amended bill that there was no debt owing by the intestate to said Holcomb, and no settlement to be made between them, and that the settlement referred to was a settlement between him and the husband of the intestate, are contradictory of the writing; (5) that the persons having the three-fourths interest in the lands should have been made parties. The demurrers were overruled, and from the decree overruling them the appeal is taken.

1. The equitable lien of the vendor of lands for the payment of the purchase money follows the debt, and on the death of the vendor his personal representative is ordinarily the proper party to pursue remedies for the enforcement of the lien. There are exceptional cases, however, in which a court of equity is accustomed to dispense with the presence of the personal representative, or with an administration permitting the next of kin to sue for the recovery of personal assets in their own names and right, reducing them to possession. When an estate is entirely free from...