MANNING, J. —
There was no liability on tbe part of defendants for tbe rents tbey bad received, to be enforced in favor of complainant in any court. Tbe bill and evidence show, that tbey were received as compensation for tbe use and occupation of property wbicb really belonged to tbe parties sued. As we bave seen, tbe title and ownership of the land were cast upon tbem as heirs, by tbe death of former proprietors. Title to a part of it thus came to tbem from John E. Coleman : and although tbey took it subject to tbe statutory power of tbe administrator of bis estate to bave it appropriated to tbe payment of bis debts, if the personalty was insufficient, yet, until tbe authority to do this was exercised or asserted, they were legally as fully entitled to tbe use and enjoyment of tbe land, and of tbe rents, issues, and profits, as if tbeir title was in all respects indefeasible. As was said here on a former occasion, “ As between tbe administrator and tbe heirs, tbe latter are not responsible for rents received, or damages, until tbe statute power is asserted in some lawful mode; on tbe principle, that in law tbey are tbe owners, and may lawfully expend tbe usufruct, until advised of tbe necessity to apply it otherwise.” Patton v. Crow, 26 Ala. 432; Branch Bank v. Fry, 23 Ala. 777; Chighizola v. LeBaron, ex’r, 21 Ala. 406.
Tbe assumption in tbe argument for appellee, that Thatcher did, as administrator of John E. Coleman, lease tbe land, and receive tbe rents, and then, in violation of bis trust, distribute tbe money among tbe defendants, although it receives a show of support from tbeir answers (wbicb do not, however, say that in so doing be acted as administrator), is at variance with tbe averments of tbe bill, and testimony oij witnesses. From tbe latter it appears, that Thatcher was administrator of tbe estate of Aquilla Coleman, also, of wbicb be after-wards made a final settlement; and that, acting as tbe common agent of defendants in this suit, as inheritors of tbe land, be leased it from year to year, after tbe death of tbe [588] dowress, said Priscilla, and before bis report of John E. Coleman’s estate as insolvent, and paid to each of them his or her share of the rents collected. He did not receive or claim these, or let to a tenant any portion of the dower property, as administrator of the estate of said John E. Coleman, deceased.
2. In respect to the claim, for the estate of John E. Coleman, of a portion of the purchase-money for the lands sold in Mississippi: if complainant was entitled to any moneys from defendants on that account, for these the common-law courts were open to him. His right to sue in them was plain, and the remedy adequate and complete. Upon obtaining judgments at law against them, nothing hindered him from having their interests, as tenants in common in the land, sold under writs of execution thereon; unless, as some of the defendants insist, they are shielded against these by the exemption laws; which, if it be true, is a protection that a court of equity has no jurisdiction to interfere with and strike down.
It seems from the prayer of the bill, that complainant’s counsel supposed he had some right in the nature of a specific lien on defendants’ portions of the land, as security for the moneys he claims of them, which right or lien might entitle him to the assistance of a court of equity. The chancellor was asked to declare and enforce such a charge upon the proceeds of the sale of said portions, and he did so. But it was a mistake to suppose that the administrator of John E. Coleman’s estate, as a creditor for the moneys, if any were due, for the Mississippi lands, had any better right than that of any other creditor, seeking to obtain payment of a money debt, -to recourse against the property pursued; or to the aid of a court exerting its powers in a different manner, to enable him to reach it.
3. There remains only one other object for which this suit was brought. The bill alleges, that the dower property could not be equally and fairly divided without a sale, and prays that it be sold for that reason. This brought the cause within the jurisdiction of the Chancery Court; and defendants having, in their answer, admitted the averment above, the decree for a sale of the land for partition is valid. It does not appear that the defendants put any obstruction whatever in the way to prevent complainant from exercising full authority over the portion that was of John E. Coleman. Consequently, their shares of the small price obtained should not be reduced, by costs, for which they are not properly responsible ; and owing to the shape and course given to the cause, by claims in the bill that could not be maintained, the [589] expenses of the litigation are out of proportion with the value of the property.
4. We cannot say that the court erred in overruling the objections to a confirmation of the' sale of the register. Although the property brought only three dollars an acre, and most of the persons whose affidavits were produced thought it worth twice as much, no guaranty was offered that, upon a re-sale, it should fetch a higher price than was obtained.
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MANNING, J. —
There was no liability on tbe part of defendants for tbe rents tbey bad received, to be enforced in favor of complainant in any court. Tbe bill and evidence show, that tbey were received as compensation for tbe use and occupation of property wbicb really belonged to tbe parties sued. As we bave seen, tbe title and ownership of the land were cast upon tbem as heirs, by tbe death of former proprietors. Title to a part of it thus came to tbem from John E. Coleman : and although tbey took it subject to tbe statutory power of tbe administrator of bis estate to bave it appropriated to tbe payment of bis debts, if the personalty was insufficient, yet, until tbe authority to do this was exercised or asserted, they were legally as fully entitled to tbe use and enjoyment of tbe land, and of tbe rents, issues, and profits, as if tbeir title was in all respects indefeasible. As was said here on a former occasion, “ As between tbe administrator and tbe heirs, tbe latter are not responsible for rents received, or damages, until tbe statute power is asserted in some lawful mode; on tbe principle, that in law tbey are tbe owners, and may lawfully expend tbe usufruct, until advised of tbe necessity to apply it otherwise.” Patton v. Crow, 26 Ala. 432; Branch Bank v. Fry, 23 Ala. 777; Chighizola v. LeBaron, ex’r, 21 Ala. 406.
Tbe assumption in tbe argument for appellee, that Thatcher did, as administrator of John E. Coleman, lease tbe land, and receive tbe rents, and then, in violation of bis trust, distribute tbe money among tbe defendants, although it receives a show of support from tbeir answers (wbicb do not, however, say that in so doing be acted as administrator), is at variance with tbe averments of tbe bill, and testimony oij witnesses. From tbe latter it appears, that Thatcher was administrator of tbe estate of Aquilla Coleman, also, of wbicb be after-wards made a final settlement; and that, acting as tbe common agent of defendants in this suit, as inheritors of tbe land, be leased it from year to year, after tbe death of tbe [588] dowress, said Priscilla, and before bis report of John E. Coleman’s estate as insolvent, and paid to each of them his or her share of the rents collected. He did not receive or claim these, or let to a tenant any portion of the dower property, as administrator of the estate of said John E. Coleman, deceased.
2. In respect to the claim, for the estate of John E. Coleman, of a portion of the purchase-money for the lands sold in Mississippi: if complainant was entitled to any moneys from defendants on that account, for these the common-law courts were open to him. His right to sue in them was plain, and the remedy adequate and complete. Upon obtaining judgments at law against them, nothing hindered him from having their interests, as tenants in common in the land, sold under writs of execution thereon; unless, as some of the defendants insist, they are shielded against these by the exemption laws; which, if it be true, is a protection that a court of equity has no jurisdiction to interfere with and strike down.
It seems from the prayer of the bill, that complainant’s counsel supposed he had some right in the nature of a specific lien on defendants’ portions of the land, as security for the moneys he claims of them, which right or lien might entitle him to the assistance of a court of equity. The chancellor was asked to declare and enforce such a charge upon the proceeds of the sale of said portions, and he did so. But it was a mistake to suppose that the administrator of John E. Coleman’s estate, as a creditor for the moneys, if any were due, for the Mississippi lands, had any better right than that of any other creditor, seeking to obtain payment of a money debt, -to recourse against the property pursued; or to the aid of a court exerting its powers in a different manner, to enable him to reach it.
3. There remains only one other object for which this suit was brought. The bill alleges, that the dower property could not be equally and fairly divided without a sale, and prays that it be sold for that reason. This brought the cause within the jurisdiction of the Chancery Court; and defendants having, in their answer, admitted the averment above, the decree for a sale of the land for partition is valid. It does not appear that the defendants put any obstruction whatever in the way to prevent complainant from exercising full authority over the portion that was of John E. Coleman. Consequently, their shares of the small price obtained should not be reduced, by costs, for which they are not properly responsible ; and owing to the shape and course given to the cause, by claims in the bill that could not be maintained, the [589] expenses of the litigation are out of proportion with the value of the property.
4. We cannot say that the court erred in overruling the objections to a confirmation of the' sale of the register. Although the property brought only three dollars an acre, and most of the persons whose affidavits were produced thought it worth twice as much, no guaranty was offered that, upon a re-sale, it should fetch a higher price than was obtained.
For the errors hereinbefore indicated, so much of the main decree of the chancellor on the merits of this cause, as charges defendants, or any of them, with the rents they respectively received for the dower-land in controversy, before this suit was brought, and so much of said decree as charges defendants, or any of them, with any part of the purchase-money of the Mississippi lands, and so much of said decree as charges any of the sums of money so received for said rents and purchase-money upon the proceeds of the sale of said dower-lands, or of the portions of defendants, or any of them, and all and every part of said decree, and of the reports, confirmations, and orders in the Chancery Court relating to, and intending to carry into effect said decree, are reversed and annulled, except so much and such part of said decree as orders a sale of the said dower-land, and the reports of the register or master concerning such sale, and the orders confirming the same, — which part of said decree, reports, and orders of confirmation are affirmed. And this court, proceeding to make the further orders in this cause that ought to have been made by the chancellor, doth further direct and decree that, after deducting from the gross proceeds of the sale of said dower-land one-half of the costs of the bill and answers in this cause, but not of the exhibits to the bill, and all the costs of the decree of sale of the dower-land, and of executing the same, including advertising and auctioneer’s fees, — one-fourth of the residue of said proceeds or price, and one-fourth of all the rents for said dower-land that have been collected or received therefor by all and any of the officers, receivers, or other agents of the Chancery Court, or by complainant in this cause, whether from proceeds of cotton or otherwise, and one-fourth of all the interest that has accrued on said residue of the proceeds and on said rent moneys, be paid to each of the three defendants, Mrs. Parmela Cockrell, Charles 0. Coleman, and Edward C. Pearson, and that the other fourth thereof be paid to or retained by complainant as administrator of John R. Coleman’s estate; and that said complainant pay all the costs of this cause in this court, and all the costs in said Chancery Court of Greene county, except so much of the latter as are to be paid, as [590] above ordered, out of tbe price of tbe dower-land, with leave to charge them against tbe estate of John E. Coleman.
And it is further ordered, that this cause be remanded to said Chancery Court, that these orders of this court may be therein carried into effect.