Speers v. Banks

HARALSON, J. — Section 2106 of the Code, having reference to the application for the sale of lands for the payment of debts or for division, by whom and to whom made, provides’that such an “application may be contested by any party interested in the estate.’”’ The appellee, Banks, shows in his bill, that he purchased from the widow and heirs at law of M. D. Burch-field, deceased, the intestate, — including S. R. Burch-field, his administrator in chief, — the lands mentioned in the bill, and which are sought, on the application of the administrator de bonis non, John Speers, to be sold by the decree of the probate court of Walker county, for the payment of debts; that he paid the purchase price therefor, — $2,500,—in full, and received a conveyance of them, with warranty of title, from the vendors. The bill sets up a state of facts to show that the estate of intestate owed no debts for payment of which said lands are liable to be sold, which averments, if true, [327] and axe properly presented to said probate court, should prevent the granting of an order of sale, on the application of the administrator de bonis non. When the case was last here, we said: “Complainant has shown that he is the owner of said lots, and the party really interested to resist the application of the administrator de bonis non in the probate court, for an order for their sale to pay debts. He was not, and in the nature of things could not be, a party to those proceedings. He has a right, therefore, to apply to the chancery court for its injunction against an order to which the administrator, under the averments of the bill,, had no right, and the granting of which, in that court, he was powerless to prevent.” — Banks v. Speers, 103 Ala. 447. Upon further deliberation, we feel constrained to recede from the ruling in that case, holding that the appellee could not become a party to said probate proceedings, and to hold, that said Banks, having succeeded by purchase to the right and title of all the parties interested in said lands, is, as to this application for their sale, under said section of the Code, a “party interested in the estate,” and may,.on his application to the court, be let in to contest said application' of the administrator for their sale, just the same as the original parties in interest from whom’ he purchased, without having parted with their interest, might have done. If he may do this, the same reasons, and the same facts he sets up in his bill in equity as grounds for enjoining the granting of an order of sale by said probate court, are as available, on a contest of said application, in said court, against the granting of said order of sale, as they would be in the equity court. Speers, the administrator de bonis non, did not take or acquire possession of these lots, as is shown, until after the expiration of eighteen months allowed for the presentation of claims against the estate, and his right of possession was, therefore, only prima facie ; and, as was said in the first appeal, “it is met and successfully overcome, if there are no debts or expenses of administration to be paid, or if there have been sufficient assets for these purposes, which have been wasted or misapplied. * * And it requires a deficiency in fact to justify the order of sale. If the deficiency has been brought about by mal-administration, or by a devastavit committed by the [328] personal representative, a case is not made justifying an. order of sale. He and his sureties are the parties to be looked to.” — Banks v. Speers, 97 Ala. 569. If Speers should be defeated in his application for the sale of the lots, he would be liable in ejectment at the suit of Banks for the recovery of the possession of them. If not needed for the purpose of paying debts of the estate,his right of possession would fail. If Banks, then, may contest this application, andmake the same insistence in the probate court against its granting, as in the chancery court, it would seem his remedy at law is complete, and there is no necessity for his invoking the jurisdiction of the latter court, for the assertion and recovery of his rights. There are no other facts stated in the bill to give the equity court jurisdiction, which are purely of equitable cognizance, and the result is, that the bill is without equity, and was liable to the demurrer interposed to it. The decree of the court below is reversed and the cause remanded. Eeversed and remanded.