Pritchett v. Dixon, 6 Div. 696.

• Decision Date: 12 March 1931
• Docket Number: 6 Div. 696.
• Citation: 222 Ala. 597,133 So. 283
• Parties: PRITCHETT ET AL. v. DIXON ET AL.
• Court: Alabama Supreme Court

133 So. 283

222 Ala. 597

PRITCHETT ET AL. v. DIXON ET AL.

6 Div. 696.

Supreme Court of Alabama

March 12, 1931

Rehearing Denied April 9, 1931.

Appeal from Circuit Court, Jefferson County; Wm. M. Walker, Judge.

Bill to sell lands for division by Jerry Pritchett and others against Jessie Dixon and others, with intervention and cross-bill by P. A. Murray. From the decree, complainants appeal.

Reversed and remanded.

p>Page estate consisting of three parcels, of which the said Morrison Pritchett was seized at the time of his death for division among said heirs as joint owners or tenants in common.

The bill alleged that said Will Pritchett claimed to have some right, title or interest in said lands, and that, before filing the bill, said Will Pritchett was appointed as the administrator of the estate of said Morrison Pritchett deceased, by the probate court of Walker county, Ala.

Will Pritchett, though not made a party defendant in his representative character, appeared and filed an answer "individually and as administrator of the estate of Morrison Pritchett, deceased," denying that the complainants and the other respondents were the heirs at law of said Morrison Pritchett, deceased; that he was a son of said Morrison Pritchett; that he was on the 30th day of August, 1927, appointed administrator of the estate of said Morrison Pritchett by the probate court of Walker county, and was at the time such administrator and acting as such; that the estate owed one P. A. Murray of Anniston, Ala., and Chas A. Hasler & Co. of Pratt City, Ala.; that said debts aggregated over $450; and that the personal property is insufficient to pay said debts. He prayed that his answer be made a cross-bill, and that the real estate be sold for the payment of the debts.

P. A Murray, who was not made a party to the original bill thereupon filed a petition under the provisions of section 9332 of the Code, alleging that he was interested in two parcels of said real property, being the transferee of a mortgage executed by said Morrison Pritchett in his lifetime to J. M. Pennington, as trustee, and B. F. Ray, to secure an indebtedness of $381.05.

The court thereupon entered an order allowing Murray to intervene, by filing an answer and cross-bill, praying for the foreclosure of said mortgage. A copy of the mortgage was attached to the bill as Exhibit B, and embodied therein was the following provision: "If I fail to pay said indebtedness in whole or in part, at maturity, said J. M. Pennington, Trustee, and Ben F. Ray, their agents or assigns are authorized to take possession of said property, and after giving 15 days' notice by posting notices in three (3) public places in Birmingham, Jefferson County, Alabama, to sell the same at auction, to the highest bidder, for cash, in front of the court house door in said County and the proceeds devoted to paying,-first, the expense of advertising and selling, and the payment of a reasonable attorney's fee for foreclosing this mortgage; and second, the amount, with interest, that may be due on said indebtedness, and the surplus, if any, to be turned over to the undersigned."

The answer and cross-bill of Murray was filed July 28, 1928. On August 29, 1928, the complainants filed an answer and demurrers to said cross-bill, and the defendant Will Pritchett, individually and as administrator of the estate of Morrison Pritchett, deceased, also filed demurrers to said cross-bill. On July 3, 1929, the intervener, Murray, amended his cross-bill, and on January 30, 1929, another amendment was made to said cross-bill.

On January 7, 1930, Will Pritchett, individually and as administrator, made motion to dismiss said cross-bill.

On January 8, 1930, in the absence of answer to the cross-bill as amended, or decree pro confesso, taking the averments thereof as confessed, and without the appointment of a guardian ad litem for R. B. Dixon, the minor complainant, to defend against said cross-bills, the case was submitted for decree "upon the bill of complaint as amended, the answer and cross bill of Will Pritchett, individually and as administrator of the estate of Morrison Pritchett, deceased, the petition of P. A. Murray, as intervener in said cause, the answer and cross bill as amended of P. A. Murray, the demurrer of Will Pritchett to the amended answer and cross bill of P. A. Murray, the demurrer and answer of the complainants to the cross bill of Will Pritchett, the demurrer and answer of the complainants to the cross bill as amended of P. A. Murray, and the motion of Will Pritchett, as administrator and individually, to dismiss this cause," and on the testimony noted by the register.

Thereupon the court entered a decree, granting relief to the intervening respondent, Murray, foreclosing the mortgage, ascertaining the indebtedness due thereon to be $619, and ordering the property described in the mortgage sold by the register for the satisfaction thereof.

The sale was made by the register in pursuance of the decree of the court, and Murray became the purchaser at the sale at and for the sum of $700. The sale was reported and confirmed, and decree confirming the sale directed the register to pay out of the proceeds the taxes due the state, county, and the city of Birmingham, and all of the costs of the suit, amounting to $195.45.

The final decree also adjudged and decreed that the complainants and the respondents, other than Will Pritchett and Murray, were the heirs at law of Morrison Pritchett, deceased. Otherwise the equities of the original bill were undetermined and undisposed of. From the final decree foreclosing the mortgage, and determining some of the equities of the original bill, and the decree confirming the sale, the complainants have appealed.

On the submission here the appellee, Murray, made motion to dismiss the appeal, on the ground that the decrees appealed from are not final decrees, and the case was submitted on the motion and merits.

G. M. Edmonds, of Birmingham, for appellant.

Rutherford Lapsley, of Anniston, for appellee.

BROWN, J. (after stating the facts).

The decree of March 24, 1930, disposes of the equities asserted by the cross-bill...