Lesslie v. Richardson

60 Ala. 563

• Court: Supreme Court of Alabama
• Decided: December 15, 1877
• Status: Published

Opinion

STONE, J.

William Richardson recovered a money judgment against Thomas Bass and others. Each of the parties died, leaving the judgment unsatisfied. Richardson, the administrator of Richardson, filed a bill against Turrentine, administrator, and the heirs-at-law of Bass, to subject lands descended to the payment of said judgment. A decree was rendered, in accordance with the prayer of the bill, and under it certain lots in the town of Athens were sold, and purchased and paid for by Mrs. Lesslie, and title and possession given to her. Richardson’s administrator then settled his administration, and distributed the money he had received from the sale of said lots, and was discharged as administrator. Subsequently, the decree, under which the lots were sold, was reversed in this court, on the appeal of the legal representative and heirs of Bass, and the bill finally disposed of against • Richardson. Thereupon, Turrentine, who had previously obtained an order in the Probate Court to sell said lots, did sell them, and Mrs. Lesslie again became the purchaser, paying about the same sum at each sale, and received a conveyance from the administrator, Turrentine. The present bill was filed against the distributees of Richardson, his personal representative, and the sureties of the latter, and against Turrentine, the administrator of Bass. It sets forth the facts stated above; avers that there is real estate, which was of the estate of Bichardson, deceased, and which is now in the hands of one of the Bichardson heirs as purchaser; and prays that said real estate be declared subject, and that “the heirs of the estate of William Bichardson deceased, and the administrator thereof, be required by decree to refund and restore the said sum of five hundred and five dollars and forty cents to your oratrix..... But, if your oratrix be mistaken in this remedy, then she further prays that the said John Turrentine be decreed to pay back to your oratrix the said sum received by him herein shown.”.

There was a demurrer filed to the bill, which the chancellor sustained. Among the causes of demurrer assigned is that of multifariousness, which consists of misjoinder of causes of action and of parties. Pending the argument on demurrer, the complainant moved for leave to amend her bill, by striking out the names of William Bichardson’s administrator and his sureties, and claiming no relief against them in that capacity. This would have left the heirs and distributees of Bichardson, and the administrator of Bass, the only defendants to the bill. The chancellor refused to allow the amendment, holding that it would not heal the defects of the bill.

The present bill charges, that the decree in favor of Bichardson, administrator, against Turrentine, administrator, and others, under which the lots were sold in December, 1868, was “reversed and annulled” in this court, in June, 1870. This is not equivalent to an averment that the decree was void, for defect of jurisdiction, or for other cause. A sale, made under a judgment or decree that is afterwards reversed for error, is not thereby avoided, unless the judgment or decree under which it is made is void. — 1 Brick. Dig. 773, § 1971; Borer on Judicial Sales, §§ 63 to 68,138,139,483 ; Freeman on Judgments, §§ 117, 118; Freeman on Executions, § 345. There is not enough in the present bill to justify a recovery against Bichardson’s heirs or distributees. The bill does not show on what ground the decree was reversed and annulled; and although we think the decree was probably reversible on appeal, it was not void.

2, Nor are we prepared to say a remedy could be had against Turrentine.—See Beene v. Collenberger, 38 Ala. 647; Town Council v. Burnett, 34 Ala. 400. The claim against Turrentine, even if it fell without the influence of the doctrine of money paid under a mistake of law, is, at most, only an effort to recover back money paid by mistake; an action for money had and received. An action of assumpsit is the appropriate remedy in such case. When there is a complete and adequate remedy at law, the Chancery Court has no jurisdiction, unless it is conferred by statute. There is no statute which confers on that court jurisdiction of a simple money demand like this. — 1 Brick. Dig. 639, § 3.

3. It is here contended, that the grounds of demurrer assigned in this record do not sufficiently specify the defects in the bill, noticed above, and that, on that account, the demurrer should have been disregarded. — Code of 1876, §§ 3005, 3784. There is another principle, however, which renders this inquiry immaterial. The bill contains no equity, and it is not error to dismiss such bill, even though there be no demurrer. To put the court in error, the complainant must have offered to amend her bill, so as to give it equity. This the record fails to show she did.

The chancellor’s decree is affirmed.

Brickell, C. J., not sitting, having been of counsel.