
    Langley v. Langley, et al.
    
    
      Bill in Equity to Enforce Vendor's Lien.
    
    1. An administrator buying land at Ms own sale vested with inchoate equity; purchasers and sub-purchasers from him. not innocent purchasers. — The prohate court granted to two administrators on their application an order to sell the land of the estate, the payments to be one-hal'f cash and the remainder on credit; the sale was made and one of them became the purchaser and executed his promissory note to his co-administrator for the deferred payment of the purchase money; the sale was confirmed before maturity of the note and a deed was made to the purchaser by a person appointed by the court. The purchasing administrator did not make the cash payment or pay his note given for the purchase money, hut sold and conveyed the land and then resigned his administration and was discharged therefrom by decree of the probate court; there were other conveyances of the land to different parties and by them to still other parties; the remaining administrator brought his hill in equity against his former co-administrator and the heirs of the intestate and the purchasers of the land to enforce the vendor’s lien. The bill was dismissed for want of equity. Held, that the administrator purchasing at the sale made under the order of the court, did not acquire the legal title to the land by the deed executed to him, hut only an inchoate equity which on full payment of the purchase money would ripen into a perfect equity; and the purchaser from him and his sub-vendees were not purchasers for value without notice, although they purchased in ignorance of the fact that the purchase money had not been paid, and although the deed to the purchasing administrator was made under order of court.
    2. Promissory note by one administrator to another of the same estate an asset and has lien on land for which given. — Where there are two administrators of an estate and one of them becomes purchaser of land of the estate sold under order of the probate court issued to them, and in part payment of the purchase money, gives his co-administrator his promissory note and is then discharged from the administration, the promissory note is an asset of the estate, which the remaining administrator may collect by proceedings to enforce tbe vendor’s lien.
    3. Settlement of administrator when void. — A decree rendered on any settlement made by an administrator after resignation ■without notice to tbe remaining administrator, as required by tbe statute, would be void.
    4. When intervening purchaser not proper party to hill to enforce lien. — An intervening purchaser of land between tbe original purchaser and tbe last vendee, who has parted with bis interest by conveyance, is not a necessary or proper party to a bill to enforce tbe vendor’s lien brought by tbe original vendor.
    5. Complainant should he allowed to amend defective hill. — Where a bill is defective and subject to demurrer filed to it, and is-dismissed for want of equity, tbe ends of justice are best accomplished by reversing tbe decree and remanding tbe cause with directions to allow tbe complainant to amend as be may be advised.
    Appeal from tbe Chancery Court of Tallapoosa.
    Heard before tbe Hon. J. E. Dowdell.
    F. E. Langley and W. T. Langley, as administrators of John J. Slaughter, deceased, obtained from the probate court of Tallapoosa county an order to sell lands of the estate. The terras of sale were one-half cash and the balance of purchase money at twelve months. W. T. Langley having become the purchaser of a part of the lands, executed his promissory note to his co-administrator for the deferred payment, but did not make the cash payment. The sale was confirmed by the probate court, and J. Percy Oliver was appointed to execute deed to W. T. Langley, which he did.- Said Langley sold and conveyed said land so purchased by him and resigned his administratorship and was regularly discharged therefrom by the decree of the probate court. F. E. Langley as sole administrator filed the bill in this case to enforce the lien for the purchase money. On hearing the cause the chancellor dismissed the bill for want of equity, declining to rule on the demurrer.
    J. M. Chilton and Thomas L. Bulger, for appellant.
    Where there are two administrators and one becomes indebted to the estate for the purchase money of land of the estate bought by him in the course of administration of which he is put in possession, but for which he does not make payment, the remaining administrator may after the resignation of the debtor administrator maintain a bill to enforce a vendor’s lien. There is a clear distinction between such case and a case where an attempt is made against an administrator during his continuance in office by his coadministrator. — Wallace v. Nichols, 56 Ala. 321; Ketchum v. Greah, 53 Ala. 224; McGully v. Chapman, 58 Ala. 325; Boling v. Smith, 108 Ala. 411.
    Garrett & Lackey, for Jno. E. Heard.— (1). Heard • is not a proper party defendant.
    If an administrator purchases land of the estate of his intestate he is chargeable on his settlement with the purchase money; the moment the money becomes due the debt is extinguished and the money is assets in his hands. Hence, if his co-administrator could collect from him the result would be that he would be subject to a double liability. — Chil-ders v. Ghilclers, 3 Ala. 752; Ward v. Oates, 42 Ala. 225; King v. Shackelford, 6 Ala. 423; Duffey v. Buchanan, 8 Ala. 27; Ligón v. Ligón, 84 Ala. 555; Knight v. Haynie, 74 Ala. 542. (2). An administrator- cannot maintain a suit either at law or in equity against his co-administrator for an accounting of the assets in his hands belonging to the estate. — Cook v. Cook, 69 Ala. 249; Hendricks v. Thornton, 45 Ala. 289.
   TYSON, J.

— The bill in this cause was filed by the appellant as administrator of the estate of Slaughter and seeks to enforce a vendor’s lien upon certain lands there íh described which were sold by an order of the probate court of Tallapoosa county for division amongst the heirs. It is alleged in the bill that the petition for the sale of these lands was filed by the complainant and one of the respondents, W. T. Langley, who was a co-administrator with the complainant; that the lands were ordered to be sold by the administrators for one-half cash and the remainder on twelve months’ credit. At the sale on the 23d day of November, 1893, the respondent, Langley, became the purchaser at and for the price of $1,283.-20, and gave his -note to the complainant for the deferred payment due Nov. 23, 1894; that he never made the cash payment nór has he ever paid the note. It is further alleged that a report of the sale was made to tbe probate court, in which it was stated that the respondent, Langley, bad paid the cash payment, which was untrue, and that no report has ever been made that the deferred payment was paid, that notwithstanding the terms of sale were partly for credit, before the maturity of the deferred payment the probate judge appointed Oliver and commissioned him to execute a deed to Langley as purchaser, and Oliver, on the 3rd day of July, •1894, executed a deed to him. The remaining allegations of the bill aver a sale of the land by Langley, the purchaser, to certain other respondents, and contract of sales by some of his grantees to certain other defendants, and the resignation by Langley the respondent-as administrator of said estate and decree entered by the probate court on the 17th day of November, 1896, discharging him from any further' administration of said estate, leaving the complainant at the time of the filing of the bill as the sole administrator.

Under these averments it is too clear for disputation that the deed to Langley as purchaser did not convey the legal title to the land, but only vested in him an inchoate equity which upon full payment of the purchase money would ripen into a perfect equity, and the purchaser from him or his sub-vendees cannot claim the protection afforded to purchasers for valuable consideration without notice; although they bought in ignorance of the fact that the purchase money had not been .paid and although the conveyance to Langley was made under an order of the court.—Cruikshank v. Luttrell, 67 Ala. 318; Wallace v. Nichols, 56 Ala. 321; Ketchum v. Creagh, 53 Ala. 224; Balling v. Smith, 108 Ala. 411; McCully v. Chapman, 58 Ala. 325 ; Ligon v. Ligon, 84 Ala. 555; Anderson v. Bradley, 66 Ala. 263; Washington v. Bogart, 24 So. Rep., 245; s. c. 119 Ala. 377; Bogart v. Bell, 112 Ala. 412; Allison v. Allison, 114 Ala. 393.

The main question presented is,-whether the complainant can maintain this bill, his co-administrator being the purchaser at the sale of the lands, not having paid any portion of the purchase money and having resigned and been discharged by the probate court, before the filing of this bill? The contention of appellees is that as the respondent Langley was the seller and purchaser the moment he contracted the debt for the purchase of the lands, it was extinguished and it became assets in his hands as administrator, and he was chargeable with the amount as if he had collected the money or converted the property of the estate into money. And in support of this contention they cite the cases of Childress v. Childress, 3 Ala. 752; Ward v. Oates, 42 Ala. 225; King v.. Shackelford, 6 Ala. 423; Duffy v. Buchanan, 8 Ala. 27; Ligon v. Ligon, 84 Ala. 555; Knight v. Haynie, 74 Ala. 542; Cook v. Cook, 69 Ala. 249

We do not doubt the soundness of the principles upon which the opinions in iliose cases are made to rest. No one can doubt that complainant could not maintain this this bill so long as the respondent Langley was his co-ad-, ministrator. The reason for the rule is clearly stated in King v. Shackelford to be “that where there are several executors, each has a right to receive the debts and other assets of the estate; and a payment of the sums received by him, to his co-executor, will not discharge his liability to the estate. Further that executors are not liable to each other, but each is liable to the cestuis que trust and devisees to the full extent of the funds received by him.” No such relation as that exists in this case. And the complainant alone is now responsible for the administration of the assets of the estate. Can it be doubted that Langley’s promise to pay the price of land, which he has never paid, going into possession under the purchase and reselling it as owner, is an asset of the estate? Suppose both the Langleys had resigned as administrators at the same time and the court had appointed an administrator de bonis non, it would hardly be contended that such administrator de bonis non could not enforce the lien for the purchase money. The cases of Ketchum v. Creagh, Cruikshank v. Luttrell, Wallace v. Nichols., cited above, were bills by administrators de bonis non to enforce vendor’s liens against the purchaser at sales made of lands under an order of the probate court. And. in the case of Cruikshank v. Luttrell, the administrator had the purchaser at the sale who was unable'to pay the purchase price bid. by him to transfer bis certificate of purchase to him, the administrator, and be resold the lands to Luttrell at private sale, taking bis notes for the purchase money. Yet this court did not. say, that the administrator only became chargeable with'the purcháse money as if be collected it or converted the lands into money upon a settlement of the estate by the outgoing administrator with the administrator ele bonis non. On the contrary it held that the administrator cle bonis non could enforce a vendor’s lien upon the lands. Section 241 of the Code of 1896 (2173, Code, 1886) required respondent Langley within one month after his resignation, to make final settlement of his administration of the estate; and of which settlement notice was required to he given. Section 242, Code 1896, (Code 1886, § 2174) provides that the remaining or succeeding executor or administrator of the estate, if there be one, must be a party to such settlement and is entitled, if a resident of the State, to personal notice at least ten days before the day appointed for the settlement. That the remaining administrator is a necessary party cannot well be doubted. Indeed, the decree rendered on any settlement made by the administrator after resignation, without notice to the remaining administrator as required by the statute, would he void. As said in Hatchett v. Billingslea, 65 Ala. 17, “The object of the notice is that the administrator may appear at the settlement and have an opportunity to contest the account. This is eminently necessary and just; for as the law now stands (Section 244, Code 1896, [§ 2176, Code 1886]), a decree may be •rendered against him, in favor of the outgoing administrator ; and if the estate be solvent, an execution may be ordered thereon, under which the assets of the estate may be sold away from his possession and control.” And the learned judge might have stated further that in the event the outgoing administrator was indebted to the estate, the decree must be rendered in favor of the remaining administrator. Section 243, Code 1896, (§ 2175, Code 1886). On the inquiries, of a balance due the outgoing administrator and of the solvency of the estate, the estate and remaining administrator should be represented. In such a settlement the resigned administrator is the party on tbe one band and tbe continuing administrator or succeeding administrator (administrator.. de bonis non) is tbe adverse party. Hatchett v. Billingslea, supra. Section 250 of Code 1896 (Code 1886, §.2182), provides that “tbe proceedings for tbe settlement of tbe accounts of deceased or outgoing executors or administrators, provided for in tbis article, do not prevent any action by tbe remaining or Succeeding administrator or by any person entitled thereto against sncb executor, or administrator or bis personal representative, for any property remaining in bis bands or for any other cause of actionTbe settlement required of a resigned administrator is in tbe same article with tbis section and it indeed immediately succeeds those providing tbe manner by which such a settlement is to be bad. It will be observed from reading section 241, that it requires settlement to be made by an administrator when removed. We hold that under tbis section bad tbe respondent Langley made a settlement of bis administration of tbe estate after bis resignation, that tbis would not preclude tbe complainánt from maintaining tbis suit, to enforce a vendor’s lien upon tbe land for tbe purchase money confessedly due by him. Unless we disregard the opinion in tbe case of Hendricks v. Thornton, 45 Ala. 299, the right of tbe complainant to maintain tbis bill is conclusively determined by it. Tbe only difference between-that case and tbe one under consideration is, in that case tbe outgoing administrator was removed and here tbe outgoing administrator resigned. Tbis difference ■can make no possible distinction between tbe two, since ■as we have stated, tbe method of procedure in both are provided by tbe same statutes. We adhere to tbe opinion of the court in that case as to what is there said as to tbe right of tbe remaining administrator to maintain tbe suit.

The conclusion reached by us in tbis case is recognized in tbe case of Cook v. Cook, supra, where it is said, “Tbe only case where a decree is authorized in favor of one personal representative against another, is where there is a removal, a resignation or revocation of tbe letters of an executor or administrator or bis authority ceases for any cause; in such case a decree may be rendered in favor of a remaining or succeeding executor or administrator.”

While it is unnecessary to consider demurrers, where a bill is dismissed for want of equity, unless they raise the same question as raised by the motion to dismiss, as the bill may be amended to meet defects pointed out by them, yet, in this case, for the purposes of further proceedings in this cause, it would be well for us here to say that the respondent, J. E. Heard, is not a proper or necessary party to the bill; the averment as to him shows that he parted with his interest in the lands by conveyance to James A. Heard, although there is no ground of demurrer raising the question. If a bill is defective and subject to demurrer filed to it, where it has been dismissed for want of equity, the ends of justice are best accomplished by reversing the decree and remanding the cause, with directions to allow the complainant to amend as he may be advised. Cruikshank v. Luttrell, supra.

The decree of the chancellor dismissing the bill must be reversed and annulled, and the cause is remanded.

Reversed and remanded.  