Comer v. Shehee

TYSON, J. It is manifest from the allegations of the original bill, that its purpose was to enforce the equity of the complainants, who are children or descendants of children of the intestate, to have the share or portion of "William G. Shehee as heir at law in the lands of the intestate subjected to the payment of advancements made to him, and to have the lien of Corner, acquired by the levy of his attachment upon William Shehee’s interest In these lands, declared subordinate to their equity. And it cannot be doubted that this right is of equitable cognizance.—Streety v. McCurdy, 104 Ala. 502. The amendments to the bill simply eliminated the widow of the intestate, who is shown to have had her dower in the lands assigned, as a party complainant, and sought to have them sold for partition, and the proceeds distributed among those entitled thereto; averring in this respect that the interest of William Shehee in the lands will be found to be worth only a small amount, if any, more than the- advancement made by the intestate to him, and said sum, if found to exist at all, is all that is subject to the claim of his creditor, Comer. [595] A motion was made by Comer to strike these 'amendments on the ground that they presented a new and entirely different 'cause of action from the one sought to be enforced by the original bill. This court, in Marshall v. Marshall, 86 Ala. 383, and Booth v. Foster, 111 Ala. 312, held that upon bill filed for partition, the court would entertain and settle equities growing out of advancements. We can see no good reason why the converse of the proposition is not sound. Here the court having taken jurisdiction for the purpose of subjecting the interest in the intestate’s lands as a tenant in common or joint tenant with the complainants by descent, of an heir at law, it is no departure to order a sale of the lands for partition, and to divide the proceeds equitably among those entitled to- them. Indeed, it may be ¡said, in view of the fact that the lands cannot be equitably divided, and, therefore, as William' 'Shehee’s share is incapable, equitably, of being separated from the other five-sixth interest, that it is entirely proper that the whole should be sold, and that the court distribute the proceeds, subject to the equity of complainants. The amount of the advancement to William She-hee was fully proven by the decree of the probate court which resulted from a proceeding instituted in that court, for that purpose, and which proceeding was in all respects regular.- — Code, §§ 1470 et seq. It may be said that as Comer was not a party to this proceeding, he is not bound by the decree ascertaining that the advancement was, in fact, made, and the amount thereof. The answer to tbs suggestion is, that he is entitled to subject only such, interest in the lands to the payment of his debt, after the advancement has been paid out of them, and that a judicial ascertainment, by a court of competent jurisdiction, of the fact of advancement and the amount thereof, which bound his debtor, binds him. It is, in every respect, analogous to the principle so often recognized by this court, that in the absence of fraud a judgment against a grantor in a fraudulent conveyance is conclusive evidence of the debt, in favor of the creditor, as against the alleged fraudulent grantee.—Yeend v. Weeks, 104 Ala. 331, and cases cited. There was, therefore, no necessity for proof of the ad [596] vancement, 'or the amount thereof, by evidence aliunde, and none could be made which would, in anywise, vary or alter the recitals of the decree ascertaining such advancement. The decree affords all the data necessary to correct ascertainment of the balance, that should be deducted from William ■ S'hehee’s ■ share of the proceeds of the lands, should Ms share exceed the amount of the advancement. Of course, should -his share of the proceeds not equal the amount of the balance due on the advancement, then no deduetibn Would be necessary, and no surplus would be left to Comer, his creditor. ■ Doubtless the testimony-of Shehee was-introduced for the purpose of showing the date'of the advancement in order that interest might be charged upon it. And this seems to have been the view that- the chancellor took of it. Por we find that the register is directed to calculate interest upon the advancement from the date it was made up to the settlement of adminisration of the esate in the probate court when a distribution of-the personal estate was had, and also the interest on any balancé remaining after settlement. Advancements do not bear interest. Krebs v. Krebs, 35 Ala. 293; Fennell v. Henry, 70 Ala. 484; Caldwell v. Caldwell, 121 Ala. 598. However, as this portion of the deeree is interlocutory,- being merely a direction to the register,- which could be changed at a subsequent term, made- for the purpose of carrying out the decree adjudging that complainants were entitled to have the lands sold for partition, etc., the complainants can take nothing by this appeal. - ■ Affirmed.