Opinion
5 Div. 786.
May 11, 1922.
Appeal from Circuit Court, Tallapoosa County; S. L. Brewer, Judge.
J. W. Strother, of Dadeville, for appellant.
Before a complainant is entitled to recover, there must be both appropriate allegation and proof in support of such allegations. Real estate of persons dying intestate descends to heirs at law of decedent, and unless necessary for payment of debts of decedent or some other purpose of administration, the administrator has no right to collect rents and profits therefrom or to interfere therewith. 108 Ala. 105, 20 So. 387; 68 Ala. 98; 64 Ala. 438, 38 Am. Rep. 15; 63 Ala. 580; 91 Ala. 512, 8 So. 342.
Stuart Mackenzie and Wm. F. Thetford, both of Montgomery, for appellee.
Brief of counsel did not reach the Reporter.
As we read the brief for appellant, only two propositions are urged in impeachment of the orders and decrees of the trial court: (1) That no proof was offered to support the allegations of the bill with respect to the execution of the notes sued on, and hence the order of reference was erroneous; and (2) that, even if duly proved, the administratrix was without legal right to collect rents accruing from the decedent's real estate after his death, in the absence of a statutory showing of necessity for their appropriation to the payment of debts of the estate, and, hence, that the bill was without equity, and its allegations could not support a decree for relief.
1. The answer admits the execution of the two promissory notes as charged in the bill, and this relieved complainant of the burden of making formal proof. The allegation that respondent "does not admit that Exhibit A (or B) to the bill of complaint is a correct copy of said note" is evasive merely, and does not amount to a denial that the copy is correct, nor does it avoid the admissions otherwise made as to the character and substance of the notes.
"Where material facts are stated in the bill, which, prima facie, are within the knowledge, information, or belief of the defendant, his failure to deny them, or to express his belief of their falsity, or to state that he cannot form any belief respecting their truth, is a virtual admission that they are true. He cannot shelter himself behind equivocal, evasive, or doubtful terms, nor behind a literal denial which amounts to no more than a negative pregnant." Grady v. Robinson, 28 Ala. 289.
On the admissions of the answer alone, the trial court was justified in ordering the reference.
The answer admits fully and unequivocally the allegation of the bill that by the decree of a court of competent jurisdiction a lien was declared on respondent's interest in the lands of the estate for "any sums of money found to be due from this respondent to the complainant for or on account of rents of any portion of the lands belonging to said James V. Ashurst, deceased, at the time of his death." At the time of that decree the rent notes here sued on were in existence, and presumably the decree related to the obligations which they evidenced. Prima facie, that decree, as shown by the bill, established the validity of respondent's then existing obligations with respect to the payment of rents for that portion of the lands rented by him, and the right of the administratrix to collect whatever amount was afterwards found to be due in that behalf by subjecting respondent's share of the lands to its satisfaction. Manifestly, the only question left open was the amount of the debt for the payment of which the land was to be charged by the administratrix.
It results that the bill contained equity, and the contention of appellant in that regard cannot be sustained.
We find no error in the rulings of the trial court, and its orders and decree in the premises will be affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.