Wood v. Stanley

CLOPTON, J. In Strange v. Keenan, 8 Ala. 816, it was held, that the heirs of a decedent have an equitable lien, for the unpaid purchase-money, on lands sold for distribution by commissioners, under an order of the Orphans’ Court, which were purchased by the administratrix, though the sale had been confirmed, and a title made by decree of the court. The purchase-money, for which no security was taken, was in fact unpaid, and there had not been any final settlement of the administration. The statute now is, that a conveyance can not be ordered until the whole of the purchase-money has been paid; and it is held that the retention of title is the reservation of a lien. If it is conceded that the order for a conveyance can be impeached on proper grounds, and collaterally, and that it is not conclusive on the heirs, unless they have appeared and contested the fact of payment, whereby it becomes a proceeding inter partes-, as the court is without 'power to order a conveyance, except on full payment of the purchase-money, the recitals of the order are 'prima facie true as against the heirs. The lien retained can exist only for purchase-money unpaid. The report of its payment by the joint administrators, and the decree, upon the ascertainment of the payment, that a conveyance be made to the purchaser, are presumptive of payment. On a bill by the heirs to enforce a vendor’s lien, this presumption will prevail, to the exclusion of the lien, in the absence of [351] countervailing proof. — Sims v. Sampey, 64 Ala. 230. Under such circumstances, the burden is on the heirs to overcome the primafaeie case of payment; and the failure to do so in the present case is fatal to the complainants’ right to relief. One of the administrators being the purchaser, the purchase-money, when it became due, was, in legal contemplation, in his hands, and his co-administrator and sureties became liable therefor. The heirs had the right to elect to consider the money as in his hands, or treat it as unpaid, and resort to the land. The bill shows, that in January, 1873, a final settlement of the estate was made, on which decrees were rendered severally in favor of the complainants, for the amount of their respective portions of the sum in the hands of the joint administrators, for distribution; and the bill asserts a lien on the lands purchased by one of the administrators for the payment of these decrees. The administrators were debited with the purchase-money; and the sum distributed largely exceeded its amount, consisting, in addition thereto, of money received from the sales of other lands, the sales of personal property, and from other sources. There was a commingling of considerations, and no data are given by which to ascertain how much of the decrees was for or in consideration of the purchase-money due by the administrator. By the rendition of the decrees, which fixed a liability on the co-administrator, and the sureties on their official bond, a new security was acquired. On the decree in favor of one of the heirs, an execution was subsequently issued, under which the lands were sold, and purchased by third parties; and the complainants rested for nine years before filing the bill. These circumstances show that the complainants, who were adults, elected to consider the money as in the hands of the administrators, and repel any intention to retain a lien. — Strange v. Keenan, supra; Williams v. McCarty, 74 Ala. 295. Affirmed.