Coopee, J.,
delivered the opinion of the court.
The material facts of this case are, that prior to the year 1854 Ker Boyce, the testator of the appellee, and Farish Carter were the owners of several tracts of land situated in the counties of Lee, Itawamba, Pontotoc, Lafayette, and Tate, and that one James Drane was the agent of the owners and authorized by them to make sales for cash or on credit. Drane made a number of sales, partly for cash and partly on credit, and from time to time remitted to his principals the proceeds received by hiru,
In 1854 Ker Boyce died in the State of South Carolina testate. By his will, which has been duly probated in this State, the appellee was appointed executor.
In the year 1861 Farish Carter died in the State of Georgia testate, and by his will devised all the lands owned by him in this State to J. F. Carter, who died in the State of Alabama in the year 1866, and on whose estate E. Troup Handle was appointed administrator by the proper court in that State. Mary A. Handle, the wife of this administrator, was the sole heir at law of J. F. Carter.
James Drane, the agent of the parties, died in 1869, and his place as agent, so far as Boyce, executor, was concerned, was thereafter filled by his son, J. W. Drane. It appears that after the death of J. F. Carter, James Drane applied to E. Troup Handle, [397]*397the administrator of his estate, to be appointed agent for the estate as to these lands, and after the death of James Drane, J. W. Drane also made a similar application, to both of which the administrator replied that he had no authority to appoint an agent; that there was litigation pending touching the devise of the lands made by the will of Farish Carter, and until that could be settled it could not be told who was the owner of the lands, but that if it should be determined that Mrs. Handle owned them, then she would consummate any sales which might be made. In a communication made by the elder Drane to Mr. Randle, in the year 1868, it appeared that he had in his hands the sum of eighty-one dollars and sixty-five cents, which he had received from previous sales, and that probably other sums would be received (at least Mr. Handle seems to have inferred that such other collections would be made), and as the lands were not producing any income, Handle directed Drane to pay the taxes on the lands from such collections, and also stated that in any event any taxes paid out by Drane should be refunded to him.
In 1873 Boyce, executor, directed Drane to employ counsel and to cause a bill to be filed for a partition of the lands, which was done, and on the petition thus filed a decree was mode partitioning the lands between Boyce, the complainant, and Mrs. Randle. By this petition no account was asked of the money which had been distributed by the agent, Drane, nor of the expenses incurred and discharged by the complainant in paying taxes on the lands, etc. In the decree for partition it was provided that since Boyce had engaged the attorneys who had conducted the proceedings, and had become personally liable to them for their fee of five hundred dollars, he should be allotted lands of that value in excess of those allotted to Mrs. Randle, and this was done. The commissioners appointed to make partition valued each tract of land, and among other lands awarded to Boyce was the southeast quarter of section 8 of township 9 of range 6 in Lee County, which was valued at the sum of two thousand dollars. Among the lands allotted to Mrs. Handle was a tract composed of the southeast quarter of section 28 and the northeast quarter of section 33, in township 9 [398]*398of range 6, east, in said Lee County, which tract was appraised at the sum of one thousand dollars.
In the year 1881 Clayton, the appellant, was appointed administrator of .the- estate of J. F. Carter in this State by the Chancery Court of Lee County. ' .
The present bill was exhibited ‘against this administrator, and after stating the foregoing facts the complainant charged that Farish and J. F. Carter in their respective lives, and since the death of J. F. Carter that Mrs. Randle and her husband, E. Troup Randle, as administrator of the estate of J. F. Carter, had received more than an equal proportion of the money realized from the sales of the lands made by Drane, and that the complainant had expended considerable sums in the payment of taxes on the lands and in employing counsel to protect the property against adverse claims, none of which had been refunded by his co-tenants. He charged that the southeast quarter of section 8, township 9, range 6, in Lee County, which had been allotted to him in the partition, and which was valued by the commissioners at the sum of two thousand dollars, had never been the property of Boyce & Carter. He prayed a decree against the administrator of J. F. Carter for one-half of this sum with interest from the date of the partition, and for an account to be taken of the amounts received and expended by the owners prior to the partition, and that heunight have a decree against the administrator for any sum found due to him, to be fixed as a charge on the land which had been allotted to Mrs. Randle.
The administrator answered, denying liability to account or that a decree could be rendered against him on the facts stated.. Neither Mrs. Randle nor E. Troup Randle were made defendants to the bill} but there appears in the record an agreement that they may adopt the answer of the administrator, adding thereto a denial of the reception by them or either of them of any other funds from Drane than those admitted by Clayton as having been so received. No such answer appears in the record, nor was the bill amended so as to make them defendants. On final hearing a decree was rendered against the administrator for the sum of two thousand four [399]*399hundred and two dollars and thirty-one cents, which was declared to be a charge on the lands which had been allotted to Mrs. Randle in the partition suit.
In stating the account, the commissioner charged against the estate of Carter fifty dollars, being one-half of the sum charged by J. W. Drane for his services in attending upon the commissioners by whom the land had been divided under the decree for partition, and also the sum of one thousand dollars, which it appears was expressed by James Drane to E. Troup Randle in the year 1869. On the same day on which this remittance was made to Randle, a like sum was remitted to Mr. Boyce, but exactly what part of this sum was intended by the agent, Drane, as a distribution of the funds of Boyce & Carter, does not appear. In his letter Drane instructed Boyce to credit the sum to his account as agent of Carter & Boyce, and of Boyce, Carter & McDonald, and of Boyce as executor of Ker Boyce, all of whom had lands in this State for the sale of which Drane was the agent.
It seems,from the briefs of counsel that the proceeding has been carried on as though Mrs. Randle and her husband had been made defendants to the bill, but they are ignored in the final decree, and we infer do not join in this appeal, which is prosecuted without any petition for appeal, or bond. As the decree must in any event be reversed, we have considered it as though Mrs. Randle was a party to it, because such seems to have been >the understanding in the court below, and for the further reason that by so doing we can dispose of the questions really involved, and thus avoid the necessity of a future appeal.
Free access — add to your briefcase to read the full text and ask questions with AI
Coopee, J.,
delivered the opinion of the court.
The material facts of this case are, that prior to the year 1854 Ker Boyce, the testator of the appellee, and Farish Carter were the owners of several tracts of land situated in the counties of Lee, Itawamba, Pontotoc, Lafayette, and Tate, and that one James Drane was the agent of the owners and authorized by them to make sales for cash or on credit. Drane made a number of sales, partly for cash and partly on credit, and from time to time remitted to his principals the proceeds received by hiru,
In 1854 Ker Boyce died in the State of South Carolina testate. By his will, which has been duly probated in this State, the appellee was appointed executor.
In the year 1861 Farish Carter died in the State of Georgia testate, and by his will devised all the lands owned by him in this State to J. F. Carter, who died in the State of Alabama in the year 1866, and on whose estate E. Troup Handle was appointed administrator by the proper court in that State. Mary A. Handle, the wife of this administrator, was the sole heir at law of J. F. Carter.
James Drane, the agent of the parties, died in 1869, and his place as agent, so far as Boyce, executor, was concerned, was thereafter filled by his son, J. W. Drane. It appears that after the death of J. F. Carter, James Drane applied to E. Troup Handle, [397]*397the administrator of his estate, to be appointed agent for the estate as to these lands, and after the death of James Drane, J. W. Drane also made a similar application, to both of which the administrator replied that he had no authority to appoint an agent; that there was litigation pending touching the devise of the lands made by the will of Farish Carter, and until that could be settled it could not be told who was the owner of the lands, but that if it should be determined that Mrs. Handle owned them, then she would consummate any sales which might be made. In a communication made by the elder Drane to Mr. Randle, in the year 1868, it appeared that he had in his hands the sum of eighty-one dollars and sixty-five cents, which he had received from previous sales, and that probably other sums would be received (at least Mr. Handle seems to have inferred that such other collections would be made), and as the lands were not producing any income, Handle directed Drane to pay the taxes on the lands from such collections, and also stated that in any event any taxes paid out by Drane should be refunded to him.
In 1873 Boyce, executor, directed Drane to employ counsel and to cause a bill to be filed for a partition of the lands, which was done, and on the petition thus filed a decree was mode partitioning the lands between Boyce, the complainant, and Mrs. Randle. By this petition no account was asked of the money which had been distributed by the agent, Drane, nor of the expenses incurred and discharged by the complainant in paying taxes on the lands, etc. In the decree for partition it was provided that since Boyce had engaged the attorneys who had conducted the proceedings, and had become personally liable to them for their fee of five hundred dollars, he should be allotted lands of that value in excess of those allotted to Mrs. Randle, and this was done. The commissioners appointed to make partition valued each tract of land, and among other lands awarded to Boyce was the southeast quarter of section 8 of township 9 of range 6 in Lee County, which was valued at the sum of two thousand dollars. Among the lands allotted to Mrs. Handle was a tract composed of the southeast quarter of section 28 and the northeast quarter of section 33, in township 9 [398]*398of range 6, east, in said Lee County, which tract was appraised at the sum of one thousand dollars.
In the year 1881 Clayton, the appellant, was appointed administrator of .the- estate of J. F. Carter in this State by the Chancery Court of Lee County. ' .
The present bill was exhibited ‘against this administrator, and after stating the foregoing facts the complainant charged that Farish and J. F. Carter in their respective lives, and since the death of J. F. Carter that Mrs. Randle and her husband, E. Troup Randle, as administrator of the estate of J. F. Carter, had received more than an equal proportion of the money realized from the sales of the lands made by Drane, and that the complainant had expended considerable sums in the payment of taxes on the lands and in employing counsel to protect the property against adverse claims, none of which had been refunded by his co-tenants. He charged that the southeast quarter of section 8, township 9, range 6, in Lee County, which had been allotted to him in the partition, and which was valued by the commissioners at the sum of two thousand dollars, had never been the property of Boyce & Carter. He prayed a decree against the administrator of J. F. Carter for one-half of this sum with interest from the date of the partition, and for an account to be taken of the amounts received and expended by the owners prior to the partition, and that heunight have a decree against the administrator for any sum found due to him, to be fixed as a charge on the land which had been allotted to Mrs. Randle.
The administrator answered, denying liability to account or that a decree could be rendered against him on the facts stated.. Neither Mrs. Randle nor E. Troup Randle were made defendants to the bill} but there appears in the record an agreement that they may adopt the answer of the administrator, adding thereto a denial of the reception by them or either of them of any other funds from Drane than those admitted by Clayton as having been so received. No such answer appears in the record, nor was the bill amended so as to make them defendants. On final hearing a decree was rendered against the administrator for the sum of two thousand four [399]*399hundred and two dollars and thirty-one cents, which was declared to be a charge on the lands which had been allotted to Mrs. Randle in the partition suit.
In stating the account, the commissioner charged against the estate of Carter fifty dollars, being one-half of the sum charged by J. W. Drane for his services in attending upon the commissioners by whom the land had been divided under the decree for partition, and also the sum of one thousand dollars, which it appears was expressed by James Drane to E. Troup Randle in the year 1869. On the same day on which this remittance was made to Randle, a like sum was remitted to Mr. Boyce, but exactly what part of this sum was intended by the agent, Drane, as a distribution of the funds of Boyce & Carter, does not appear. In his letter Drane instructed Boyce to credit the sum to his account as agent of Carter & Boyce, and of Boyce, Carter & McDonald, and of Boyce as executor of Ker Boyce, all of whom had lands in this State for the sale of which Drane was the agent.
It seems,from the briefs of counsel that the proceeding has been carried on as though Mrs. Randle and her husband had been made defendants to the bill, but they are ignored in the final decree, and we infer do not join in this appeal, which is prosecuted without any petition for appeal, or bond. As the decree must in any event be reversed, we have considered it as though Mrs. Randle was a party to it, because such seems to have been >the understanding in the court below, and for the further reason that by so doing we can dispose of the questions really involved, and thus avoid the necessity of a future appeal.
On the facts shown no decree should have been rendered against the administrator.
It does not appear that Farish Carter in his lifetime received more than his share of the funds arising from the sale of the common property, and if this did appear it would not afford ground for a personal decree against the administrator of J. F. Carter, for the debts of Farish Carter, though chargeable on the lands which he devised to J. F. Carter, did not by such devise become the personal debts of J. F. Carter, and only for such [400]*400debts can a personal decree be rendered against the personal representative.
Nor is the decree made valid by the fact that it charges the amount found due on the lands, for in them the administrator is not interested in that sense that a decree may be made fixing a charge on them in his hands. It is true that in case there is a deficiency of personal assets the lands may be dealt with as assets, but the administrator is not owner and has no sort of connection with •them relative to claims which may be charged on the lands, but not on the general estate.
If the partition had been made in the lifetime of J. F. Carter and between himself and Boyce, then Carter’s implied warranty of title to Boyce would have been a personal obligation, for breach of which an action might have been had against Carter if living and against his administrator after his death. But the partition was made not between Carter and Boyce, but between Boyce and the heir at law or devisee of Carter, Mrs. Randle, and for a breach of Mrs. Randle’s warranty the administrator of Carter is in no wise liable.
The account, which was taken, does not shoAV that J. F. Carter ever received one dollar from the proceeds of the lands. No distribution of the money Avas made by Drane from 1860 to 1867. In the former year Farish Carter was alive, and in the latter J. F. Carter Avas dead.
Neither the administrator in this State nor the lands in the hands of Mrs. Randle can be charged with the thousand dollars said to have been sent by Drane in 1869 to E. Troup Randle, the administrator in Alabama. That administrator had no authority to receive anything other than the money of the estate of his intestate. If he received more than this he is responsible as an individual, but not in his representative capacity, unless it be also shown that the money was actually appropriated to the use of the •estate, and of this there is no proof. For the same reason that the administrator here is not liable, Mrs. Randle’s lands are not. There is no privity betAveen the heir and the administrator, and he cannot charge the lands in the hands of the heir. If the money [401]*401received by him had been appropriated to discharge a claim which bound the land, then it might have been reached under the doctrine of subrogation, but, as we have said, there is no proof of such facts.
Mrs. Randle should not have been charged with the half of the one hundred dollars. This charge seems to us- to be one which the agent might well have made against his principal, Mr. Boyce, whom he was representating in the partition proceedings, but there was no such relation existing between Mr. Drane and Mrs. Randle, and to charge her with a part of this sum would be to compel her to pay for services neither authorized nor knowingly received. The fee of five hundred dollars paid by Boyce to the attorneys who procured the decree of partition having been allowed in that suit and settled is res adjudicata, and is removed from the field of litigation.
Under the same principle which authorizes Boyce to call upon Mrs. Randle to refund one-half of the value of the lands allotted to him, the title of which was in other parties, Mrs. Randle has the right to be reimbursed for one-half of the loss she sustained by the fact that the land allotted to her at one thousand dollars had been previously sold by the owners for five hundred dollars, which sum she was forced to accept as payment in full of the land. The decree of partition is not res adjudicata that the title to the land divided was in the co-tenants, but only that it was so recognized by them in that suit. We speak, of course, with reference solely to cases in which it appears that at the time of the partition the title was in a third person not a party to the suit. Whether one of the parties to a partition can, after partition made, set up an adverse claim in himself which existed at the time of the decree is a totally different question.
There was no evidence before the court or the commissioner on which it was proper to charge against the complainant only three hundred and fifty dollars of the one thousand dollars remitted to him by Drane in January, 1869. The complainant calls upon the defendant to account touching the money distributed by the agent. He has neglected to propound his claim through many years, and by reason of the lapse of time and the death of parties, the- evi[402]*402deuce of the transactions has become obscured and doubtful. Under these circumstances, while the court will not refuse its aid, it can be invoiced only upon the theory that it is still possible to arrive at a proper result. The court will not direct an account to be taken when it is certain that only a part pf the items can be taken into consideration because of defect of proof when, as in this case, the party moving in the matter has been guilty of negligence and laches, and by reason of the delay which has intervened may gain an advantage over his adversary. It devolves upon the complainant, who comes after the lapse of so many years seeking to have a statement of accounts, to satisfy the court that a fair and full statement may be made.
Decree reversed.