ANDERSON, J.
In discussing equitable estates arising from conversion of real estate into personal and personal estate into real, Mr. Poanreoy, in his valuable work on Equity jurisprudence, says: “The whole scope and meaning of the fundamental principle underlying the doctrine are involved in the existence of a duty- resting upon the trustees or other parties to do the specified act; for , unless the equitable ‘ought’ exist, there is no room for the operation of the maxim ‘equity regards that as done which ought to he done.’ The rule is therefore firmly settled that, in order to work a conversion while the property is yet actually unchanged in form, there must be a clear and imperative 'direction in the will, deed, or settlement, or 'a clear, imperative agreement in the contract, to convert the property; that is, to sell the land for money, or to lay out the money in the purchase of land. If the act of converting — that is, the act itself of selling the land or of laying out the money in land — is left to the option, discretion, or choice of the trustees or other parties, then no equitable conversion will take place, because no duty to malm the change rests upon them. It is not essential, however, that the direction should be express, in order to be imperative. It may be necessarily implied. Where a power to convert is given without words of command, so that there is an appearance of discretion, if the trusts or limitations are of a description exclusively applicable to- one species of property, this circumstance is sufficient to outweigh the appear [639]*639anee of an option, and to render the whole imperative. Thus, if a power is given to lay out money in land, this will show an intention that the money should be so laid out, and will amount to an imperative direction to convert; for otherwise the terms of the instrument could not be carried into effect. In fact, the whole result depends upon the intention. If by express language, or by reasonable construction of all its terms, the instrument shows an intention that the original form of the property shall be changed, then a conversion necessarily takes place. A contract of sale, if all the terms are agreed upon, also operates as a. conversion of the property; the vendor becoming a trustee of the estate of the purchaser, and the purchaser a trustee of the purchase money for the vendor. In order to work a conversion, the contract must be valid and binding, free from inequitable imperfections, and such as a court of equity will specifically enforce against an unwilling purchaser. The fact that the contract of purchase is entirely at the option of the purchaser does not prevent its working a conversion, if he avails himself of the option. This, like all other questions of intention, must ultimately depend upon the provisions of the particular instrument. The instrument might in express terms contain an absolute direction to sell or to purchase at some specified future time; and if it created a trust to sell upon the happening of a specified event, which might or might not happen, then the conversion would not only take place from the time of the happening of that event, but would take place when the event happened exactly as though there had been an absolute direction to sell at that time. Subject to this general modification, the rule is settled that a conversion takes place in wills as from the death of the [640]*640testator, and in deeds and other instruments inter vivos as from the date of their execution.” 3 Pomeroy’s Equity jurisprudence (3d Ed.) §§ 1160, 1161, 1162.
In case of the death of the vendee before a conveyance has been made, his interest in the land should be considered as real estate and descends to his heir, or he may devise the same by will; and in case of the vendor’s death, where he is under contract to sell lands, his heir receives the title in trust for the vendee, and must convey upon payment of the purchase money, but the purchase money goes, not to the heir1, but to the personal representative, of the vendor, for the vendor’s interest had been converted by the contract from realty to personalty. 6 Pomeroy, 840, 841; Wimbish v. Montgomery M. & L. Association, 69 Ala. 577. It is true the contract must be an enforceable one at the death of either party thereto ; but enforceability at the time of death of one of the parties refers to the validity of the contract, and not to events in the nature of conditions which may not have been performed because such performance was not due at the time of the death, of the testator. It is sufficient if these conditions can be performed by his representative. 6 Pomeroy, 845; Williams v. Haddock, 145 N. Y. 144, 39 N. E. 825. We think it was the manifest intent and purpose of the parties to the contract involved to establish and fix their respective interests in the land by becoming equal owners of same, subject to a charge thereon in favor of Flo-merfelt of not less than $15,000 in any event, but more in case the property should sell for $40,000 or over. It expressly provides that the parties are “equally interested therein,” subject to a prior payment out of the proceeds to Flomerfelt.
It is insisted that there was no conversion, as the interest of the parties was dependent upon a sale to be made by mutual consent and for not less than $40,000, [641]*641and that said sale did not take place, and cannot now be made under said contract, since the death of Floi-merfelt. We cannot agree that a sale under the mutual consent clauses of the contract was a condition precedent. The contract should be considered in its entirety, and while it contemplates a private sale by parties, and binds them to same only ¡in case The property iwill bring $45,000, it does not make them equal owners only in the event of such a sale, nor preclude a sale for division in case they fail to sell under the mutual clauses. Clearly. it was contemplated by the parties that their affairs should be settled by owning the land equally, subject to Flomerfelt’s claim,, whether they made a consent sale or not, as the contract expressly provides for the amount to be received by Flomerfelt in case the property “should be sold for $40,000 or less.” Moreover, the contract provides for the execution of conveyances from one to the other, conveying a “one-half undivided interest in and to said property.” There would be no need for mutual conveyances, if the contract was intended as a mere agreement to divide the proceeds of the sale, in case one was made by consent, for $45,000. — Coster v. Clarke, 3 Edw. Ch. (N. Y.) 428.
What was said in the case of Allen v. Watts, 98 Ala. 384, 11 South. 646, to the effect that equity does not regard the conversion as taking effect from the death of the testator, when the will authorizes a sale only upon certain conditions, is doubtless sound, but was not decisive of said case. Nor is'it in the way of the conclusion reached in the case at bar; for, as we have attempted to demonstrate, the conversion was not dependent upon a sale, as the parties became equal equitable owners of the land, subject to a charge upon same in favor of Flomerfelt, the exact amount of which was to be fixed according to the price for which the land [642]*642should sell, under the consent clause or otherwise. The demurrer proceeding- upon the theory that there was no conversion was properly overruled.
As a general rule, persons representing antagonistic interests cannot be joined as co-complainants. — Smith v. Smith, 102 Ala. 516, 14 South. 765.
Free access — add to your briefcase to read the full text and ask questions with AI
ANDERSON, J.
In discussing equitable estates arising from conversion of real estate into personal and personal estate into real, Mr. Poanreoy, in his valuable work on Equity jurisprudence, says: “The whole scope and meaning of the fundamental principle underlying the doctrine are involved in the existence of a duty- resting upon the trustees or other parties to do the specified act; for , unless the equitable ‘ought’ exist, there is no room for the operation of the maxim ‘equity regards that as done which ought to he done.’ The rule is therefore firmly settled that, in order to work a conversion while the property is yet actually unchanged in form, there must be a clear and imperative 'direction in the will, deed, or settlement, or 'a clear, imperative agreement in the contract, to convert the property; that is, to sell the land for money, or to lay out the money in the purchase of land. If the act of converting — that is, the act itself of selling the land or of laying out the money in land — is left to the option, discretion, or choice of the trustees or other parties, then no equitable conversion will take place, because no duty to malm the change rests upon them. It is not essential, however, that the direction should be express, in order to be imperative. It may be necessarily implied. Where a power to convert is given without words of command, so that there is an appearance of discretion, if the trusts or limitations are of a description exclusively applicable to- one species of property, this circumstance is sufficient to outweigh the appear [639]*639anee of an option, and to render the whole imperative. Thus, if a power is given to lay out money in land, this will show an intention that the money should be so laid out, and will amount to an imperative direction to convert; for otherwise the terms of the instrument could not be carried into effect. In fact, the whole result depends upon the intention. If by express language, or by reasonable construction of all its terms, the instrument shows an intention that the original form of the property shall be changed, then a conversion necessarily takes place. A contract of sale, if all the terms are agreed upon, also operates as a. conversion of the property; the vendor becoming a trustee of the estate of the purchaser, and the purchaser a trustee of the purchase money for the vendor. In order to work a conversion, the contract must be valid and binding, free from inequitable imperfections, and such as a court of equity will specifically enforce against an unwilling purchaser. The fact that the contract of purchase is entirely at the option of the purchaser does not prevent its working a conversion, if he avails himself of the option. This, like all other questions of intention, must ultimately depend upon the provisions of the particular instrument. The instrument might in express terms contain an absolute direction to sell or to purchase at some specified future time; and if it created a trust to sell upon the happening of a specified event, which might or might not happen, then the conversion would not only take place from the time of the happening of that event, but would take place when the event happened exactly as though there had been an absolute direction to sell at that time. Subject to this general modification, the rule is settled that a conversion takes place in wills as from the death of the [640]*640testator, and in deeds and other instruments inter vivos as from the date of their execution.” 3 Pomeroy’s Equity jurisprudence (3d Ed.) §§ 1160, 1161, 1162.
In case of the death of the vendee before a conveyance has been made, his interest in the land should be considered as real estate and descends to his heir, or he may devise the same by will; and in case of the vendor’s death, where he is under contract to sell lands, his heir receives the title in trust for the vendee, and must convey upon payment of the purchase money, but the purchase money goes, not to the heir1, but to the personal representative, of the vendor, for the vendor’s interest had been converted by the contract from realty to personalty. 6 Pomeroy, 840, 841; Wimbish v. Montgomery M. & L. Association, 69 Ala. 577. It is true the contract must be an enforceable one at the death of either party thereto ; but enforceability at the time of death of one of the parties refers to the validity of the contract, and not to events in the nature of conditions which may not have been performed because such performance was not due at the time of the death, of the testator. It is sufficient if these conditions can be performed by his representative. 6 Pomeroy, 845; Williams v. Haddock, 145 N. Y. 144, 39 N. E. 825. We think it was the manifest intent and purpose of the parties to the contract involved to establish and fix their respective interests in the land by becoming equal owners of same, subject to a charge thereon in favor of Flo-merfelt of not less than $15,000 in any event, but more in case the property should sell for $40,000 or over. It expressly provides that the parties are “equally interested therein,” subject to a prior payment out of the proceeds to Flomerfelt.
It is insisted that there was no conversion, as the interest of the parties was dependent upon a sale to be made by mutual consent and for not less than $40,000, [641]*641and that said sale did not take place, and cannot now be made under said contract, since the death of Floi-merfelt. We cannot agree that a sale under the mutual consent clauses of the contract was a condition precedent. The contract should be considered in its entirety, and while it contemplates a private sale by parties, and binds them to same only ¡in case The property iwill bring $45,000, it does not make them equal owners only in the event of such a sale, nor preclude a sale for division in case they fail to sell under the mutual clauses. Clearly. it was contemplated by the parties that their affairs should be settled by owning the land equally, subject to Flomerfelt’s claim,, whether they made a consent sale or not, as the contract expressly provides for the amount to be received by Flomerfelt in case the property “should be sold for $40,000 or less.” Moreover, the contract provides for the execution of conveyances from one to the other, conveying a “one-half undivided interest in and to said property.” There would be no need for mutual conveyances, if the contract was intended as a mere agreement to divide the proceeds of the sale, in case one was made by consent, for $45,000. — Coster v. Clarke, 3 Edw. Ch. (N. Y.) 428.
What was said in the case of Allen v. Watts, 98 Ala. 384, 11 South. 646, to the effect that equity does not regard the conversion as taking effect from the death of the testator, when the will authorizes a sale only upon certain conditions, is doubtless sound, but was not decisive of said case. Nor is'it in the way of the conclusion reached in the case at bar; for, as we have attempted to demonstrate, the conversion was not dependent upon a sale, as the parties became equal equitable owners of the land, subject to a charge upon same in favor of Flomerfelt, the exact amount of which was to be fixed according to the price for which the land [642]*642should sell, under the consent clause or otherwise. The demurrer proceeding- upon the theory that there was no conversion was properly overruled.
As a general rule, persons representing antagonistic interests cannot be joined as co-complainants. — Smith v. Smith, 102 Ala. 516, 14 South. 765. There can be no- antagonistic interest between the widow and the administratrix, as it is to the interest of the said widow, as well as the estate, that the conversion be decreed, thus increasing the personal assets of the estate, and to this extent and for this purpose they go hand in hand; and as the administratrix she represents the creditors and not the heirs, and if this bill was for a sale for distribution, and a construction of the contract as an incident thereto, the heirs being in court, it would fall under the influence of Ex parte Baker, 118 Ala. 185, 28 South. 996. But the bill goes further, and.asks .for dower out of the proceeds, thus presenting a feature antágonistic between the widow and the estate she represents; and section" 352 of the Civil Code of 1896 contemplates an administrator ad litem. The amount awarded, her in lieu of dower would not only affect the heirs, who are in court, but the estate as well, and which has no representative, except the administratrix, and who is also seeking to charge the estate with her dower interest. The interest of the widow and the estate being antagonistic, they were improperly joined as ico-domplainants, and the demurrer proceeding upon this theory should have been sustained, and a decree is here rendered sustaining same.
What the result would be if the bill averred no debts against the estate, or that the personal property was sufficient to discharge all debts, we need not decide, as there is no such averment. And in the absence of such an averment there could arise a conflict between [643]*643tbe widow and tbe creditors in ascertaining bet interest in lieu of dower. Of course, tbe proceeds of tbe land, less tbe charge tbereon, would go to tbe beirs, subject to dower, in case tbe debts did no°t exceed tbe personal property; but, if tbe debts 'exceeded tbe personal property, tbe land would be liable, and tbe amount of dower would necessarily decrease tbe property liable to tbe satisfaction of said debts. True, tbe law fixes tbe dower interest in land; but tbe creditors should be represented in tbe allotment of dower or in tbe ascertainment of tbe sum in lieu thereof, unless, of course, tbe bill averred no debts or a sufficiency of personal property to pay tbe debts.
Tbe act (page 33, Gen. Acts 1903) authorizes attorney’s fee in cases of this character; but, should tbe chancery court award a fee in this case, it should not be based on tbe total price for which tbe land should sell, but only upon tbe common fund, which Avould be tbe proceeds after deducting tbe charge on tbe land therefrom. Tbe bill does not pray for a fee on tbe whole fund, but merely for such fee as the court, under tbe law, will award; and it was not, therefore, demurrable in this respect.
The decree of tbe chancery court is affirmed in part, and reversed, rendered, and remanded.
Affirmed in part, and reversed, rendered, and re manded.
Tyson, C. J., and Dowdell and McClellan, JJ., concur.