Harper v. . McCombs

Mebrimon, C. J. after stating case: The appellant administrator was allowed irregularly and improperly to come into this special proceeding and contest the plaintiff’s title asoné of the tenants in common of the land described in the pleadings. This was done by consent of parties, and as the Court had jurisdiction of the parties and the subject-matter of the litigation, its orders and judgments will be operative and binding upon the parties to the record, but such practice and procedure should not be tolerated, much less encouraged by the Courts. As we have repeatedly said, it is not simply *717 irregular, but it is subversive of just procedure and good practice, and never fails to give rise to more or less confusion and dissatisfaction. The record here is confused, and we have found it difficult to reach the merits - of the questions intended to be presented for our decision, if indeed, we have been entirely successful in our efforts to do so. It is conceded that the Powells named had a vendor’s lien upon the land described in the pleadings to the extent of the undivided one fourth interest therein, which they sold to the intestate of the appellant in his life-time. Theyjaad the right to enforce that lien in any appropriate action for the purpose, after as well as before the death of the vendee. They might have gone against the latter’s administrator and compelled him to pay their debt if he had assets sufficient for that purpose, but they were not bound to do so. The administrator might — perhaps ought — to have paid their debt, but he failed to do so, and they properly brought their action against the heirs of the deceased vendee, his administrator and widow, to avail themselves of their lien. The Court in that action had complete jurisdiction and authority to ascertain, declare and enforce the lien as it did so. It appears that a judgment for three hundred dollars and costs was entered, and therein the lien upon the land as to the one fourth interest therein was declared, and afterwards that interest was sold in pursuance of the judgment by the Sheriff. The plaintiff was the purchaser, he paid the purchase-money and took the Sheriff’s deed, which it must be assumed was a proper one. Afterwards the vendors, the Powells, executed a deed to the plaintiff, as they might do, and thus the title of the intestate, whether equitable or legal, or that which descended to his heirs, passed to the plaintiff. Moreover, the heirs of the vendee, his widow and the present appellant, his administrator, were parties to that action, and are estop-ped as to any rights they may have had that came within the just scope of the action and the judgment therein. The *718 very purpose of it was to ascertain and enforce the lien and conclude the'parties thereto. It is true the heirs of the vendee might, at the appropriate time and in a proper way, have required his administrator to pay the balance of the purchase-money, if he had assets sufficient to be so applied, to the end they might have received the complete legal as well as the equitable title from the vendors, but they did not do so, and they, as well as the administrator, are concluded as above indicated. No doubt, if the interest in the land was sold for .a sum of money more than sufficient to pay the balance of the purchase-money and costs, the appellant might, if need be, by some appropriate proceeding, have availed himself of that surplus as assets for the payment of the debts of his intestate. It does not appear that there was any such-surplus, and no question in that respect is presented. Affirmed.