Wells v. Elliott

BBICKELL, C. J. When this cause was before this court at a former term, it was held that- the conveyance executed by Figh to Lyman and Lewis, as executors of Edward Davis, passed to them the legal title to the lands in controversy, upon which they could maintain ejectment against the defendants, now appellants.—Lewis v. Wells, 50 Ala. 198, Since, Lewis has resigned as executor, and Lyman has died. In the Circuit Court, the cause was revived in the name of the appellee, Elliott, as administrator de bonis non; and the principal point of contention is, whether he succeeds to the title of Lyman and Lewis, and can in his representative capacity maintain the action. In this State, an administrator, or executor, may maintain ejectment, or a real action in the nature of ejectment, for the recovery of the lands of his testator or intestate.—1 Brick. Dig. 625, § 6. But the action is founded, and a recovery can be had, only on a legal title residing in the testator or intestate at the time of his death.—Cothran v. McCoy, 33 Ala. 65; McCain v. McCain, 12 Ala. 510. When, after the institution of such an action, there is a change in the administration, the successor of the plaintiff instituting it may, under the statute, continue and prosecute it in his own name to final judgment.—Code of 1876, § 2622; Russell v. Erwin, 41 Ala. 292. In this case, the legal title never resided in the testator — -he had, at best, but a mere naked equity to obtain the legal title on paying the purchase-money. After his death, the execu [186] tors made the payment of the purchase-money, and to them the title was conveyed. As executors, if the testator was under a legal liability to p'ay the purchase-money, it was their duty to make the payment. But it was not within the line of their duty or authority, to take to themselves a conveyance of the legal title. Taking such a conveyance, clothes them with no title which could pass to their successors ñi the administration. They hold as trustees, for whoever may have the primary right to the personal assets employed in paying the purchase-money; creditors, or legatees, or, it may be, next of kin.—Pittman v. Corniff, 52 Ala. 83. The trust is apparent on the face of the deed, and from it Lewis was not discharged by his resignation as executor ; nor could that resignation operate as a relinquishment or conveyance of the legal title residing in him, to his co-trustee, Lyman.—Perry on Trusts, §§ 274, 401; Gunn v. Barrow, 17 Ala. 743; Drane v. Gunter, 19 Ala. 731. Upon the death of Lyman, the whole legal title devolved upon Lewis, as surviving trustee.—Perry on Trusts, § 343. The appellee was without title to the premises in controversy, and there was error in introducing him as a party, and in not continuing Lewis as 'a party plaintiff. In this attitude of the case, it is unnecessary to consider other questions raised by the assignment of errors, many of which were decided when this cause was here at a former term. Reversed and x-emanded.