COLVIN et al. vs. OWENS, 22 Ala. 782

GIBBONS, J. The first question presented for decision is the motion to dismiss the writ of error. This motion is based on two grounds : first, that it is sued out in tbe name of only one of tbe parties defendant; and secondly, that James 1?. Key died before tbe writ of error was sued out. On looking at tbe writ of error itself, it is found to be in tbe name of “ Mary J.

Oolvin et al.” Perhaps, strictly considered, these abbreviations in a writ of error could not be construed to mean tbe other defendants in tbe court below; but on tbe authority of our statute, (Olay’s Digest 312 § 39,) we are of opinion, that tbe present is a case following directly within tbe spirit of that act; and we would not hesitate to consider tbe writ of error as amended, so as to conform to tbe actual facts as to tbe parties in tbe court below. But it is insisted, that, inasmuch as one of tbe defendants, James F.

Key, died before tbe present writ of error was sued out, it is not competent to bring in bis representatives on tbe present writ; and inasmuch as bis representatives are necessary parties before tbe court, therefore this writ of error must be dismissed, and another sued out in the name of bis representatives jointly with tbe other defendants.

To this it is replied, that, although tbe defendant Key was a necessary party while in life, having married tbe daughter of the said Alexander Colvin, deceased, yet now, inasmuch as be has died pending tbe suit, and tbe estate of said Colvin is not yet divided, bis representatives are not necessary parties before tbe court, as bis wife surviving him necessarily represents, in her own person, all tbe interests which be could possibly have represented while in life and before tbe court.

Tbe defendant Key, while in life, was undoubtedly a necessary party to be brought before tbe court with bis wife; but we cannot perceive what interest bis representatives could possibly have in tbe litigation yet pending between tbe surviving defendants and the complainant. All tbe interest which be ever bad in tbe subject matter of tbe litigation, was to represent bis wife’s interest before tbe court. Tbe estate was not yet distributed; and consequently, ihe entire interest of tbe wife in said estate, not being reduced to possession by tbe husband during bis life, would survive to her after his death.

But it is insisted, that tbe said Key engaged actively in tbe defence of tbe suit, and be therefore became liable for costs; and being so liable, his representatives are liable in the same manner; and in support of this position, is cited the ease of the Heirs of Holman v. The Bank of Norfolk, 12 Ala. 405, 406. In this case, Merrell, one of the defendants, disclaimed any interest in the suit, but still answered the bill fully, and denied its equity, and otherwise engaged actively in the defence of the case.

The question before the court was, whether the said Merrell, under the circumstances, was competent to testify in favor of his co-defendants; and the court decided that he was not, as he, having no interest in the litigation, should have promptly and simply disclaimed, and then he would not have been liable for costs; but behaving as he had done before the court, he had creatad a liability for costs, by his own misconduct, and therefore was not a competent witness. We do not consider the question now presented as falling within the spirit of the rule laid down in the case cited.

The question there was not whether Merrell was or was not a necessary party before the court, but whether his peculiar conduct before the court, he not being a necessary party, had rendered him liable for costs, and therefore incompetent to testify. Admitting, however, the analogy of the questions, and the binding force of the case cited as a precedent, still it remains to be seen whether the defendant Key has, by his peculiar conduct in the present suit, misbehaved, and thereby created a liability for costs. He was a necessary party, and therefore properly brought before the court.

He had the right, and was called upon by the complainant, to answer the bill. This he .does by adopting the answer of Mrs. Colvin. He acts as the agent and assistant of Mrs. Colvin, his mother-in-law, in the management of said suit, because, as he states, she has no one else to aid her. In all this, we see nothing improper; nor do we see any reason for making his representatives parties to these proceedings, as in no event, in our opinion, could a judgment be rendered against them for costs which accrued during the lifetime of their intestate. The motion therefore to dismiss the writer of error is overruled.

Waiving the question as to whether the bill in the present case contains any equity on its face, which we consider, under the decisions of this court in the cases of Brown v. Lang et al., 4 Ala. 54, and Jones v. Dawson, 19 Ala. 572, exceedingly doubtful, we pass directly to the consideration of the caso as made by the bill, answers and proofs. We have no difficulty whatever in arriving at the conclusion, that the complainant has established no case for equitable relief.

It is undoubtedly true, that a security who pays the debt of his principal, is subrogated to all the rights of the creditor, so far as regards the securities and equitable remedies held by him for the payment of his debt. Story’s Equity § 499. But whilst this is true, it is equally true, that where the security has thus paid the debt of his principal, he cannot stand in a better or higher position than the creditor. The question then recurs, in the present case: Had Eli Smith, under the case made by the proof, a lien, or a remedy in equity, against the estate of Alex. Colvin, for the payment of his debt ?

We have no hesitation in saying that he would not; for independent of the authorities cited above from 4 Ala. and 19 Ala., there are many reasons entirely conclusive why he would not; and first, it does not appear, from the proof, that he dealt, in fact, with the representative of the estate, or reposed faith in it, and thereby parted with his property, relying upon the ability of the estate to make him whole. On the other hand, the case made is, that he dealt with Timothy S. Colvin in his individual character, and distrusting his solvency, called for security, which the said Timothy S. gave, viz: Bobert B.

Colvin, and the complainant Owen. It is no where shown, that said Smith ever knew of the relation which the said Timothy S. held to the estate of Alexander Colvin; on the contrary, the proof is conclusive to show that Owen, the complainant, and on that occasion the security of Colvin, was not himself aware of that relation. There was nothing, then, in the nature of the transaction between Eli Smith and the said Timothy S. Colvin, to distinguish it from the ordinary transactions of men dealing in their ordinary individual capacities.

Again; in the second place, it is denied by the answer that the mules were purchased for and on account of the estate, and it is charged that they were purchased individually by Timothy S. Colvin, for his own account, and controlled and managed by him as such until his removal from the executors’nip of tbe estate, when they were left with Mary J. Colvin, and were retained by her as the property of said Timothy S., because he was largely indebted to her or to the estate.

The answer, therefore, in this respect, denying the allegations of the bill, the case is made to rest upon the proof, as to what was the character of the transaction by T. S. Colvin in the purchase of the said mules; and our conclusion is, both from the testimony of Timothy S. Colvin, as well as from the other proofs in the cause, that the statements of the answer in this respect are true, and that it gives substantially a correct history of the character of the purchase. The most that the said Timothy S.

Colvin can be made to say, on his examination, is, that the mules were bought jointly on his own account and on account of said estate; and the inference is irresistible from his testimony, that he states this because the estate had at the time, in his possession, seven hands, while he himself had only three ; and therefore, he says, that the estate should pay seven-tenths of the purchase money, and he should pay three-tenths.

But his whole testimony, taken together, shows that he purchased the mules individually, and on his own account, and so considered them while he remained in the possession and control of them. This then being the actual nature of the transaction between Eli Smith and Timothy S. Colvin, with what pretence, or show of equity, could the former have asserted a claim against the estate of Alexander Colvin for the payment of the purchase money of the mules ? And if Smith could not have preferred a claim, how is it that the complainant can ?

But it is insisted, that, although it should be considered that Smith had no equitable right to charge the estate of Alexander Colvin with the purchase money of said mules, still, the matters occurring subsequently between the complainant and defendants, coupled with the fact that the mules have all the while remained in the possession and employment of the estate, give to the complainant an original right to charge the estate with the amount of his debt.

We think otherwise ; for it is not competent for the executrix of an estate, by any assumpsit of hers, to render an estate liable for a debt which it really does not owe. It is true, her promise to pay a debt barred by the statute of limitations would revive tbe debt, and make tbe estate bable; but in that case, tbe promise would be supported by a moral obligation, if not a valuable consideration, viz: tbe debt; but it is believed that is as far as tbe cases have gone.

If it was competent for an executor or administrator of an estate to create debts so as to charge tbe trust funds, there would be but little security for tbe cestuis que trust. It is sufficient to say, that tbe law has denied to them any such power. As to tbe fact that tbe mules have remained on tbe plantation, and in tbe possession of Mrs. Colvin, tbe executrix .of tbe estate, we see nothing in it that should charge tbe estate with tbe complainant’s debt; especially, when it is shown that tbe estate has paid full value for tbe mules to Timothy S. Colvin, as whose property they were originally retained by Mrs.

Colvin, and to whom she bolds herself liable to account for tbe value. Our conclusion is, that, upon tbe case made by tbe proof, tbe complainant has failed to show himself entitled to any equitable relief; and tbe decision of tbe Chancellor is therefore reversed, and tbe complainant’s bill here dismissed, with costs both of this court and tbe court below.