Mayfield v. Cook

82 So. 9, 203 Ala. 48

Opinions

PER CURIAM.

Upon consideration of this cause in consultation by the whole court, the majority, consisting of Chief Justice ANDERSON, Associate Justices McCLELLAN, SAXRE, and THOMAS, entertain the view that the assignment of demurrer, taking the point that the bill does not show there was sufficient personalty with which to pay the debts of the estate, was well taken and properly sustained. They are of the opinion that the debts should not be required by a court to be paid out of the real estate in order to leave the personalty free for application to the complainant’s alleged contractual rights, and that to so require would be permitting that to be done indirectly which was held on former appeal could not be done directly.

The holding of the majority results in an affirmance of the decree of the court below.

Affirmed.