McCullough v. Wise

Decided December 15, 1877

Supreme Court of Alabama · decided 1877-12-15

Tried before the Hon. H. D. CLAYTON. The appellants, as heirs at law of one F. W. McCullough, deceased, sued to recover a certain parcel of land from appellants, in possession, namely : Francis Wise, the executrix of said McCullough, and her husband and co-defendant, J. Q. Wise. The said appellants claim one half interest in the land.

Relies on Golding v. Golding's Adm'r · Russell v. Erwin's Ad'mr · Boynton v. McEwen

Good law ✅— No negative treatment on recordhow we know

Decided 1877-12-15

How this case has been cited

Cited by 6 later decisions — most recently March 1926

6 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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STONE, J.

¶11. 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.

¶22. 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.

¶3Affirmed.