[Kennon v. Wright, Frazier & Co.] stand it to be there held, that a judgment rendered upon an application of this character is conclusive only of the status of an estate at the time of its rendition. The personal assets may be diminished, lost or destroyed, without the fault of the administrator; or other claims may be presented, within the eighteen months allowed by law, not before brought to the knowledge of the administrator. But there is no evidence of any such change in the status of the decedent's estate in either of these respects. It is, in fact, shown to be the same at the time each application was filed and each trial was had. It is unnecessary to decide the other questions raised by the record, as the point here decided is fatal to the case of appellee in the lower court. The judgment of the Probate Court is reversed, and this court, rendering the judgment which the Probate Court ought to have rendered, hereby decrees that the application of the appellee be dismissed, at his own costs. Kennon v. Wright, Frazier & Co. Bill in Equity by Heirs, for Account and Discovery as to Crops raised on their Lands, received and sold by Purchaser. 1. Statutory lien on crops.-The statutory lien on crops grown on rented lands attaches only when the relation of landlord and tenant exists (Code, §§ 3467 et seq.), and not where there is an implied liability for use and occupation, or where one of several tenants in common occupies and cultivates the entire premises. 2. Remedy of landlord, against purchaser of crops.-When such statutory lien exists, the remedy of the landlord against a purchaser who, having notice of the lien, receives and converts the crop, is by special action on the case; and he can not maintain a bill in equity, when it is not shown that the remedy at law is inadequate. 3. Crops raised on lands of tenants in common, by husband of one of them.-Where the husband occupies and cultivates lands which belong to his wife and her brothers and sisters as tenants in common, no trust or equity attaches to the crops after he has gathered and sold them, as in favor of the other tenants in common, which they can assert against the purchaser. APPEAL from the Chancery Court of Bullock. Heard before the Hon. JoHN A. FOSTER. The bill in this case was filed on the 4th October, 1880, by Charles A. Kennon and others, children and heirs at law of Mrs. Martha B. Kennon, deceased, against Thomas Millsap, the [Kennon v. Wright, Frazier & Co.] partners composing the firm of Wright, Frazier & Co., and several other persons; and sought a discovery and account of the crops raised on a certain tract of land in said county, during the years 1877 and 1878, which were alleged to have been received and sold by said Wright, Frazier & Co., and the proceeds converted to their own use. The tract of land belonged to Mrs. Martha B. Kennon during her coverture with Richard W. H. Kennon, and were held as her statutory estate. Mrs. Kennon died, intestate, in August, 1875; and her said husband died in August, 1877. After the death of Mrs. Kennon, her husband continued to reside on the lands, with his children, and cultivated them; and in March, 1877, being indebted to Wright, Frazier & Co. for advances made during former years, and desiring to procure additional advances during the year 1877, he executed a mortgage conveying to them his entire crop of that year, with certain personal property, to secure the payment of such indebtedness and advances. On the death of said Kennon during the year, Thomas Millsap, who had married one of his daughters, took possession of the land, continued the cultivation of the crops, gathered them, and delivered them to said Wright, Frazier & Co., to be applied in payment of the mortgage debt, and advances which he had received from them. The crops were sold by Wright, Frazier & Co., with the personal property conveyed by the mortgage, and the proceeds applied on the debts mentioned, leaving a balance unpaid. The lands were again cultivated by Millsap during the year 1878; and in order to obtain additional supplies during the year, as well as to secure the unpaid balance of the old debt, he executed to Wright, Frazier & Co. a crop-lien note and mortgage. The crops raised during the year 1878 were also delivered to said Wright, Frazier & Co., who sold them, and applied the proceeds as a partial payment on their debt; and in their answer to the bill they stated particularly all the items relating to these matters of accounts. Millsap, in his answer, alleged that he so took possession and cultivated the lands in right of his wife's interest, and for the protection and benefit of the complainants, who were then infants, and who were supported, educated and clothed by him, during the years he so cultivated the lands, partly with the moneys obtained by him on the credit of the crops, and partly with his private means; and he asked that his answer might be taken as a cross-bill, that an account might be taken of these matters, and that the complainants' indebtedness to him might be set off against his liability to them on account of the rent of the lands, or the crops raised thereon. As to these matters, Wright, Frazier & Co. adopted the answer of Millsap. On the filing of Millsap's answer, the complainants entered of record a waiver of all right to relief against him, [Kennon v. Wright, Frazier & Co.] saying that they elected not to charge him with any thing whatever. The cause being then submitted on bill and answer, with the exhibits thereto, the chancellor dismissed the bill; and his decree is now assigned as error. ARRINGTON & MORRISSETT, for appellants. N. B. FEAGIN, and J. T. NORMAN, contra. BRICKELL, C. J.-The relation existing between the appellants and Mrs. Millsap was that of tenants in common of the lands on which the crops were grown. As husband and trustee, Millsap was entitled to the possession, and bound to the management and control of the wife's lands, taking the rents and profits, without liability to account to the wife, or her representatives. Having taken possession, used and occupied the entire premises, a liability to account to the co-tenants of the wife, for their respective shares of the rents and profits, it may be rested upon him. The possession not having been taken, the use and occupation not being acquired, or continued, by contract, no lien on the crops grown on the premises would result to the co-tenants. The lien given by the statute attaches only when the relation of landlord and tenant exists.-Tucker v. Adams, 59 Ala. 254. If such lien had existed, the remedy against a purchaser from the tenant, who, with notice of it, removed and converted the crops, is by an action on the case, and not by bill in equity, no fact or circumstance being averred, rendering the remedy at law inadequate.-Hussey v. Peebles, 53 Ala. 432. Nor is there, as seems to be supposed by the draughtsman of the bill, any trust, or equity, attaching to the crops grown on the lands, resulting from the fact that the lands were held in common, or because the legal estate resided in the appellants and Mrs. Millsap. When the crops were severed from the freehold, and removed from the preinises, title to them in Millsap was complete, and his power of disposition was not fettered by any trust or equity resting in the appellants. We find no error in the decree of the chancellor, and it is affirmed. VOL. LXX. [Donegan's Adm'r v. Hentz.] Donegan's Adm'r v. Hentz. Bill in Equity by Assignee, to enforce Vendor's Lien on 1. Vendor's lien; waiver of.-When the vendor executes a conveyance of the land to the purchaser, and accepts a distinct and separate security for the purchase-money—e. g., a bond or note with a surety or indorser, a mortgage on other property, or a collateral deposit of stock or personal property-this is, prima facie, a waiver and abandonment of the lien on the land. 2. Same; assignment of note or bill for purchase-money.-The assignee of a note or bill, given for the purchase-money of land, can stand in no better position than his assignor occupied, so far as relates to the lien on the land: if the lien was waived by taking a negotiable bill or note, with indorsers, for the purchase-money, it would not re-attach in favor of an assignee, although he acquired the note or bill in good faith, before maturity, in the usual course of trade, and for valuable consideration, and would be entitled to protection against any defense or equity affecting the instrument itself. APPEAL from the Chancery Court of Madison. The bill in this case was filed on the 28th February, 1867, by James I. Donegan, against Mrs. Julia E. Hentz, Andrew Hentz, her husband, and several other persons; and sought to enforce a vendor's lien on a certain house and lot in Huntsville, of which said Hentz and wife were in possession, and which Mrs. Hentz claimed as her own, under a decree rendered in her favor by the Chancery Court of said county, on the 6th December, 1866, in a suit therein instituted by her against her husband. The lot was conveyed on the 1st October, 1853, by Samuel Coltart, as the administrator of Morris Smith, deceased, on a recited consideration of $1,500 in hand paid, to "A. Hentz & Co., a partnership formed on that day between said A. Hentz and John W. Scruggs, for the purpose of carrying on the manufacture of carriages, buggies, &c., in Huntsville. By the articles of co-partnership, a copy of which was made an exhibit to the bill in this case, each of the partners was to contribute $2,000 to the capital stock; and it is recited in the articles that "said Hentz does contribute to the concern, as capital, at $1,500, the house and lot this day conveyed to said A. Hentz & Co., by S. Coltart as administrator, and the further sum of $500." The partnership of A. Hentz & Co. continued to do business until the 16th February, 1861, when it was dis 70 437 94 539 [Donegan's Adm'r v. Hentz.] solved by mutual consent, Hentz buying out the interest of his co-partner in all the stock and property, at the price of $5,000. In payment of this sum, Hentz gave to said Scruggs two bills of exchange, for $2,500 each, "drawn by said Hentz, on Scruggs, Donegan & Co. of New Orleans, in favor of said John W. Scruggs; one being dated the 16th February, 1861, at twelve months, indorsed successively by said John W. Scruggs, James H. Scruggs, and S. E. Davidson, to complainant;" and the other "dated the 16th February, 1862, due at twelve months, and indorsed successively by the payee, John W. Scruggs, and Thomas W. White, to complainant. At the same time, Scruggs executed to Hentz his title-bond for the house and lot, which is nowhere set out in the record; and on the 11th August, 1863, he and his wife executed to Hentz a deed, with covenants of warranty, conveying his undivided half interest in the house and lot, on the recited consideration of $2,500 in hand paid; a copy of which deed was made an exhibit to the bill. The complainant was the owner and holder of these two bills of exchange; alleged that he purchased them in good faith, before maturity, in the usual course of business, for valuable consideration, and on the assurance of said Scruggs that they were a lien on the house and lot; and sought to enforce them as a lien against the property to the extent of $2,500, as the agreed value or amount of the purchase-money. The bill alleged, also, that Hentz was insolvent; that he had no funds in the hands of Scruggs, Donegan & Co. when he drew the bills of exchange, and no reasonable expectations of having any funds to meet them at maturity. Mrs. Hentz filed her bill against her husband on the 22d October, 1866, alleging that the $1,500 paid to Coltart, as the price of the house and lot, was advanced by her father, Samuel Smithers, and was intended as an advancement to her; and that by mistake, "or some other cause unknown to her or her said father," and without the knowledge or consent of either of them, Coltart executed a deed to said Hentz & Co., instead of herself. The prayer of her bill was, that the legal title to the house and lot might, by the decree of the court, be divested out of her husband, and vested in herself. A decree pro confesso was entered against the husband; and on final hearing, on pleadings and proof, the chancellor rendered a decree for the complainant as prayed. The bill in this case alleged that this decree was a fraud on the rights of Donegan, as a creditor of Hentz; that the house and lot were conveyed by Coltart, without objection from either Mrs. Hentz or her father, to the firm. of A. Hentz & Co.; that it was used and held as partnership property during the whole time the partnership continued, and constituted three-fourths of the capital contributed by Hentz |