Nashville C. & St. L. Ry. v. Proctor , 152 Ala. 482 ( 1907 )

ANDERSON, J.

-The complainant, as administrator with the will annexed of John F. Anderson, deceased, filed this bill to quiet title to certain real estate therein described under article 9 of chapter 16 of the Code of 1896. Section 809, in prescribing who can maintain such a hill as the one in the case at bar, provides, among other things, that the complainant must claim to own the land involved, and therefore relates to the owner, rather than such a claim or right as is given an executor or administrator for the purpose of administering upon the estate. The legal title to the land, upon the death of the intestate or tesator, descends eo instante to the devisees or heirs, as the case may be, subject to be divested only for the purpose of administration. The executor or administrator is in no sense the owner of the land, and is not, therefore, authorized under the statute to maintain a bill to quiet the title to the land Avhieh is owned by the heir or devisee of the intestate or testator. It is true that the executor or administrator can maintain an action of ejectment for the lands of the estate for purposes of administration, and the recovery of the possession of same is, of course, essential to the discharge of his duties and the exercise of his powers, such as renting the land and selling it, when authorized by law or the will to do so, and which may become necessary in order to wind up the estate, and the right of the heir or devisee yields to the personal representative, when he asserts his right to the same. But the authorities recognize no title in the personal representative to the land, simply authorizing him to bring ejectment for same, because it is a possessory action, and a possession by him of the land is necessary to enable him to dicharge his official duties. — Landford v. Dunklin & Reese, 71 Ala. 594; Tarver v. Smith, 38 Ala. 135; Morgan v. Casey, 73 Ala. 222.

This is not an action for the possession.of land, but is a bill filed by one who would have to be in possession, actual or constructive, with a claim of ownership in order to succeed, and which said claim of ownership is distinguished from a mere right of possession for certain purposes, such as reposed in the personal representative. The right to successfully prosecute a bill under the aforesaid chapter being statutory, the remedy can be pursued only by those authorized by the statute, which does not include the complainant. It might be well that a personal representative should be authorized to clear the title to the lands of his intestate before putting it on the market for sale, as the price of land would be enhanced by previously settling- disputed claims thereto; but we are dealing with the statute as it is, not as it should be. The decree of the chancellor is reversed, and one is here rendered dismissing the bill.

Reversed and rendered.

Tyson, C. J., and Dowdell and McClellan, JJ., concur.