McCullough v. Wise

57 Ala. 623

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

Opinion

STONE, J.

1. The eases of Golding v. Golding (24 Ala. 122), and Russell v. Erwin (41 Ala. 292), have settled that an executor or administrator, under our statutes, has such a right to the possession of lands of his testator, or intestate, as that he can maintain ejectment for its recovery; see, also, Boynton v. McEwen, 36 Ala. 348. A title or right which will maintain ejectment, must necessarily be a good defense to one right in possession.

2. The executrix, having, with her own means, paid the debts of her testator, and there being no other assets, save his interest in the lands sued for, and the estate being in her debt on account of such payment, the heirs can not recover of her while the estate remains unsettled.

Affirmed.