Opinion
3 Div. 800.
October 20, 1927.
Appeal from Circuit Court, Conecuh County; John D. Leigh, Judge.
Hybart, Hare Dickey, of Evergreen, for appellants.
Counsel discuss the questions raised and treated, but without citing authorities.
Hamilton Jones, of Evergreen, for appellees.
Appellants could not maintain this suit; it would be necessary to have a personal representative appointed. Moore v. Alexander, 81 Ala. 509, 8 So. 199. This question may be raised for the first time on appeal. Prout v. Hoge, 57 Ala. 28; Carwile v. Crump, 165 Ala. 206, 51 So. 744. When an appeal is taken by only one of the parties against whom a decree has been rendered, it is necessary that summons issue against such others; and, if such summons is not issued, the appeal will be dismissed. Code 1923, § 6143; Sherrod v. McGruder, 209 Ala. 260, 96 So. 78; L. N. v. Shikle, 206 Ala. 494, 90 So. 900. The deed to J. E. Mancill to the Florida property was a good contract to convey, and in equity passed all beneficial ownership to the grantee. Margarum v. Christie, 37 Fla. 165, 19 So. 637; Ward v. German-American L. Co., 62 Fla. 582, 56 So. 565. It would be necessary for complainants to call on respondents to correct the deed or offer to reconvey the Florida lands to respondents. Alger-Sullivan L. Co. v. Union Trust Co., 209 Ala. 432, 96 So. 436; Stephenson v. Allison, 123 Ala. 439, 26 So. 290; Royal v. Goss, 154 Ala. 117, 45 So. 231; Samples v. Guyer, 120 Ala. 611, 24 So. 942. A court of equity will not entertain a bill of this kind, when the complainant has entered into possession under a warranty deed. Fields v. Clayton, 117 Ala. 538, 23 So. 530, 67 Am. St. Rep. 189; Randall v. Bourgarez, 23 Fla. 264, 2 So. 310, 11 Am. St. Rep. 379.
Appellees' suggestion that the appeal should be dismissed for failure to bring in all parties to the decree, as required by section 6143 of the Code, requires no extended discussion. Appellees cite Sherrod v. McGruder, 209 Ala. 260, 96 So. 78. There are some trifling inaccuracies in the proceedings for an appeal as they appear in the transcript of the record, but it appears beyond question that the appeal is taken in the name and on behalf of all the parties complainant who alone have reason to complain of the decree, and hence that there was and is no occasion to bring in complainants as provided by the statute. The argument appears to be based upon the fact that one, only, of the appellants signed the security for costs. But that is of no consequence; all the statute requires is security and that the bond in this case, with the register's approval, be furnished. Mayfield v. County Commissioners, 148 Ala. 548, 41 So. 932.
The bill is prosecuted by the widow and heirs at law of the deceased vendor to fasten a lien for purchase money on the property (land) sold and conveyed by him. The existence of a debt for purchase money is necessary to such a lien. Walton v. Young, 132 Ala. 154, 31 So. 448. In this state the lien is not an interest in the land, but a right to charge it with unpaid purchase money. Woodall v. Kelly, 85 Ala. 368, 5 So. 164, 7 Am. St. Rep. 57. And in our better cases it is said to have its foundation in the broad principle of equity that it is unconscientious to allow one who gets the estate of another to keep it without paying the consideration. Pylant v. Reeves, 53 Ala. 132, 25 Am. Rep. 605. The legal title to personal assets is in the personal representative, and his title and right of possession is exclusive in law, and, as a general rule, he is the only party entitled to sue for them. The interest of the distributees is equitable only. Wood v. Cosby, 76 Ala. 557. When not needed for administration, or when an administration is wholly unnecessary, or decedent's personal property has gone, without administration, where it rightfully belongs and would go in the due course of administration, the naked legal title will not prevail in equity, Kennedy v. Davis, 171 Ala. 609, 55 So. 104, Ann. Cas. 1913B, 225. The vendor's lien for unpaid purchase money, being a chose in action, goes to the executor or administrator, and not to the widow or heirs as such. 1 Woerner's Am. Law of Adm'r (2d Ed.) marginal page 596. And in the absence of a showing that no administration is necessary, it would seem that the bill in this case should have been exhibited by the personal representative. This specific objection to the bill was not taken in the trial court, but is now urged in brief and should be sustained, if well grounded in the law. Prout v. Hoge, 57 Ala. 32; Carwile v. Crump, 165 Ala. 208, 51 So. 744. It is, however, sufficiently answered by the averments of the bill that J. E. Mancill died intestate, and that:
"There are no debts due and owing by the estate of the said J. E. Mancill, deceased [vendor], and there has been no administration thereon." Fretwell v. McLemore, 52 Ala. 124.
It may be well to note also that there is in the matter of the vendor's lien nothing to distinguish an exchange of lands from a sale, or to deny to the vendor a lien to the extent of the value of the land to be conveyed to him — agreed value in this case — but which he failed to get, or to the extent of incumbrances, if there was warranty against incumbrances or representations that there were none. Bradley v. Bosley, 1 Barb. Ch. (N.Y.) 125, cited with approval in Burns v. Taylor, 23 Ala. 269.
The land sold by complainants' husband and ancestor, upon which complainants would fasten a lien, is located in this state; the land which he agreed to take in part payment of the selling price is located in Florida. The allegation is that the deed to the Florida land was executed in accordance with the law of Alabama, not the law of Florida, and was ineffectual as a conveyance of title, and "is void as a conveyance of real estate." Moreover, the Florida land was affected by two mortgages aggregating more than its total value, and this notwithstanding the proprietors of the Florida land (defendants) had represented that it was free of incumbrance. These mortgages are averred to have been executed by one Nored and his wife prior to the date of the exchange of lands averred in the bill. Complainants in their bill submit themselves to the jurisdiction of the court "and offer to do whatever the court may consider necessary to be done on their part toward making the decree which they seek just and equitable with regard to the respondents in this cause." The deeds by which it was sought to effect the exchange were executed in February, 1913. The bill in this cause was filed in June, 1919. The brief for appellees suggests that at least the deed to the Florida land is good as a contract to convey — which is doubtless true — and that, for aught appearing, complainants may be in possession of the land, and that, so long as they hold possession under the contract of sale, they will not be heard to claim a vendor's lien for the agreed price of the land. This suggestion is based upon a correct conception of equitable principle, but there need be no departure from such principle in the case presented by the bill. Complainants will be required to do equity as a condition of relief. Blackburn v. McLaughlin, 202 Ala. 435, 80 So. 818, and cases cited at the bottom of page 436 ( 80 So. 820).
The decree sustaining the appellees' demurrer to the bill is reversed; the cause is remanded.
Reversed and remanded.
ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.