Cooper v. Davison

CLOPTON, J. The bill is filed by appellees, as heirs at law of James Davison, for the foreclosure of a mortgage, executed by appellants to him, March 29, 1881, to secure a note for eight hundred dollars. The bill alleges the death of the mortgagee; that the complainants are his heirs, and only heirs at law; that the estate owes no debts, and there has been no administration; and that the property of the estate, except a few uncollected notes, and the mortgage debt, has been distributed among those entitled. While the general rule is, that distributees can not, in the absence of an administration and special circumstances, maintain suits at law, or in equity, for the collection of personal assets for distribution, courts of equity will, in exceptional cases, dispense with an administration, and collect and distribute the assets. The averments of the bill and proof show, that the [369] only duty which would attach to an administration would be the collection of the uncollected notes, and distribution; that an administration would be, not only a useless ceremony, but a diminishing process. On the allegations and proof, the heirs may properly file the bill. They have the legal title to the mortgaged land, and a perfect equity to the proceeds of the foreclosure. — Carter v. Beck, 41 Ala. 217; Fretwell v. McLemore, 52 Ala. 124; Sullivan v. Lawler, 72 Ala. 68, 72, 74. 2. It is objected that there is no legal or admissible evidence, that complainants are the heirs of the deceased mol’tgagee. A direct interrogatory was propounded to the witness, J. T. Davison, whether the complainants are the only heirs at law of the decedent, whose death was proved. No objection was made to the interrogatory, a.nd no motion to exclude or suppress the answer. The objection can not be made in this court for the first time. 3. The bill alleges that, in February, 1876, the defendants executed a deed to the lands to Mrs. L. N. Pickett, on a recited consideration of three hundred and ninety-two dollars; and that after the execution of the mortgage, Mrs. Pickett and her husband re-conveyed the land to the defendant, Texas J. Cooper, wife of the' mortgagor, without consideration. It avers that the deed to Mrs. Pickett was made with the intent to hinder, delay or defraud the creditors of the mortgagor, and that the re-conveyance was made because of an agreement, at the time the land was conveyed to Mrs. Pickett, that she would hold the title to prevent it being made subject to his debts, and re-convey the same. The bill avers, and the proof establishes, that the mortgagors were in possession of, and resided on the land, from 1869 to the time the deed was made to Mrs. Pickett, and, after its execution, retained possession thereof until 1887, renting out portions, collecting the rents, claiming the ownership, and offering to sell parts; and that during this period Mrs. Pickett resided about two hundred and fifty yards distant from the land. The retention of possession is, by the settled rule in this State, prima facie evidence of fraud, which may be rebutted or explained by proof. Crawford v. Kirksey, 55 Ala. 282. The defendants offered no proof whatever to show that the conveyance to Mrs. Pickett was bona fide, or made on a valuable consideration, or to rebut or explain- the prima facie case of fraud made by the proof on the part of the complainants, and offered no [370] evidence to sustain tbe averments o£ tbe answer, as to tbe circumstances and tbe purposes for which the conveyance was made to her. Under these circumstances, the deed to Mrs. Pickett must be declared fraudulent. Affirmed.