In February, 1876, J. D. McQueen mortgaged the lands in controversy to Jacob Faber and Mills Rogers for the purpose of indemnifying them against liability they had incurred as sureties for the mortgagor McQueen on. certain notes due in February, 1S77, and for the further purpose of securing Faber individually for supplies Avhich Avere to have been furnished by him subsequent to the execution of the mortgage. J. D. McQueen died in October, 1876, and in May, 1877, Faber and Rogers proceeding ostensibly under a poAver in the mortgage sold the lands and Rogers assumed the bid made therefor and took possession of the lands. In December, 1877, administrators of McQueen’s estate acting under an order of the probate court attempted to sell Avhat was claimed to be an equity of redemption in part of the lands and Rogers pursuant to a bid made by him at that sale paid those administrators S'580 which was used as assets of McQueen’s estate. Rogers held possession of the lands until July, 18S3, when he died. Later the respondent administrator of Rogers’ estate Avent into possession of and held the land until in 1891, Avhen he made a final settlement of Rogers’ estate. Thereafter in 1892, the respondent Maude Rainey Avho was an heir of Rogers and the transferee of the interest of his only other heir took and held the possession.
*314In September, 1895, complainant who is one of three heirs of J. D. McQueen, deceased, and who had shortly before arrived at the age of twenty-one years, filed the bill attacking the sale made by order of the probate court as invalid, and praying in substance that complainant be decreed to be entitled, to redeem and to have the land on the payment of such sum as might be decreed as equitable, and for a decree against the persons chargeable therefor for the value, of the use, occupation and rents of the land, and that the mortgage be declared satisfied and for general relief.
On a first hearing the chancery court rendered a decree establishing complainant’s right to relief on terms that, she should account to the estate of Rogers for the $580 paid by Rogers to the administrators of McQueen’s estate pursuant to the sale they attempted by order of the probate court. That decree was appealed from and was affirmed by this court. — Raney v. McQueen, 121 Ala. 191. .Thereafter an accounting 'was had and a decree thereon was appealed from. This court then treating the bill in the aspect of a bill for redemption held that the complainant’s right of redemption extended beyond her third interest in the mortgaged property to the property as a whole. See report of. the case in 127 Ala. 417. Since the last remandment another reference has been held and from the register’s report thereon it appears that.$20,264.52 besides ’other personal property belonged to Rogers’ estate and went to the heirs of that estate, that there was no debt owing on the mortgage, and that the respondent administrator of Rogers’ estate was charged as for the. rental value of the lands and interest, for the time they were in the possession of Rogers and of his administrator, respectively, and was credited with items of interest, taxes and repairs and with the $580 paid into McQueen’s estate by Rogers pursuant to.the sale attempted under the probate court’s order. The report shows further that, the respondent Raney was charged as for the rental value of the land, with interest, during her possession less expenditures by her for *315taxes, with interest. The court by its decree confirmed the register’s report and directed that the complainant have the land and recover of Whetstone as administrator the balance standing against him on the account as stated, viz., $6,078.38, and directed that in case an execution ‘therefor against him as administrator was returned unsatisfied, another should be issued against him individually; and it was further decreed that complainant recover of respondent Baney the balance standing against her on the account, viz., $2,846.82. From this decree (the. complainant and also: the respondents Whetstone, administrator, and Baney have appealed. Those respondents here move to dismiss the complainant’s appeal and this motion is submitted. upon a written admission of facts which récites that “an execution was duly issued on the decree in this case against Maude Bainey and was levied on property which was heretofore sold thereunder and was bought by plaintiff. Also execution against Whetstone under which property was levied on and sold and bought by plaintiff McQueen. * * * Said sales were made after the appeals were taken.”
The motion to dismiss the complainant’s appeal must prevail. In general a party who avails himself of a judgment or decree by coercing its payment is held to affirm its correctness and is denied the right to vex the defendant in execution by requiring him to litigate in the appellate court over the matters determined by the judgment. — Hall v. Hrabrowski, 9 Ala. 278; Bradford v. Bank, 10 Ala. 274. There are exceptions to this rule as where the appeal involves a bona fide dispute over matters .apart from or in excess of those adjudicated in the trial court, or where the appellate court can clearly see that under the facts presented a new trial ought not to result in diminishing the recovery. Phillips v. Towles, 73 Ala. 406. This case does not fall within such exceptions.
To be considered on the appeal of respondents, there is evidence in the form of an admission that the records of the probate court, do not show that Whetstone was discharged as administrator of the estate of Bogers *316but do show that he made a final settlement of that estate and distributed all the funds thereof to the parties entitled thereto. These facts do not show necessarily that Whetstone has ever been divested of his administrative capacity. — Simmons v. Price, 18 Ala. 405; Norman v. Norman, 3 Ala. 389; Ligon v. Ligon, 84 Ala. 555; 2d Woerner on Am. Law of Administration, § 572. For the purposes of the accounting and binding the estate of Rogers to a decree with respect thereto he stands in the place Rogers if in life would occupy, and the latter having been presumably cognizant of all the circumstances under which he took and held the mortgaged land, was bound to know the infirmities of his tenure which were pointed out in the opinion rendered on the first appeal. Such knowledge being imputed to Rogers, belief on his part that the equity of redemption had been extinguished could not reasonably have consisted with his knowledge of the facts. Therefore, there is nothing in the character of Rogers’ possession which exempts it from the operation of the usual rule which denies to a mortgagee in possession compensation for improvement other than such as are necessary to keep the premises in proper repair. The items claimed for improvements made by Rogers, and rejected by the. register, are not shown to have been for repairs. We do not find the register’s action in stating the account is in any particular at variance with the evidence or the law as heretofore declared in this case, nor do we find that error was committed in the exclusion of evidence offered by respondents or in the action of the court in refusing at the final hearing to allow respondent to amend her answer • as was then proposed. Defendant Whetstone was not entitled to repudiate at the last hearing the answer standing in his name, for the reason if for no other that no affidavit or other evidence was offered in support of the ground on which his application was made.
Under rule 1 of chancery practice the making of the order of reference out of the regular term is unauthorized. The cause having been submitted for final decree *317alone on the register’s report and exceptions thereto, rules 76 and 77 of chancery practice Which require the making of a note of testimony offered at a hearing are without application.
Having acquired jurisdiction for the purpose of discharging' the mortgage, the chancery court had jurisdiction to' settle the whole controversy and, therefore, to award complainant a decree for the surplus due her as rents. — Gunn v. Brantley, 21 Ala. 633; Farwell v. Sturdivant, 37 Me. 308; Johnson v. Loftin, 111 N. C. 319; Tyler v. Brigham, 143 Mass. 410; Story’s Eq. Jur. § 64.
The voluntary settlement and distribution made by Whetstone, administrator, of assets belonging to Rogers’ estate did not discharge him from liability to complainant. By reason of her minority she was: not required by the statute of non-claims to make presentation of her claims for rents and profits at a time earlier than when her bill was filed. — jCode, § 131. For the same cause she is exempt from the imputation of laches. “The mere circumstance of want of notice of a debt or claim against the estate of the deceased will not excuse an executor or administrator from the payment or satisfaction of it, if the assets were originally sufficient for that purpose, notwithsanding that, in ignorance of the existence of the debt or claim, he has bona fide handed over the assets to legatees: or parties entitled in distribution.” — Williams on Extrs., 6 Am. ed’n, 1456; Woerner’s Am. Law Administrations, § 451. Such is the common law rule and it has not in this State been abrogated though there are here statutes whereunder an administrator may be protected in distribution made pursuant to the taking of refunding bonds-. Section 859 of the Code provides that “in ali cases where an account is taken between the parties execution as at law may issue for the amount of indebtedness ascertained by the decree of the court,” and section 347 which authorizes the issuance of execution against an administrator personally after the return of no property on an execution from the circuit court has been construed in connection with section 857 of *318the Code as authorizing like proceedings in the chancery court. — Allen v. Allen, 80 Ala. 154. These considerations lead us to- the conclusion that if the decree be deemed correct in awarding the right to all the balance shown by the register’s report it was also correct in the direction given for the ultimate issuance of execution against Whetstone individually. Thus far the members of the court, are in agreement.
A majority of the court holds that complainant has in this proceeding a. right, to recover on account of the surplus rents and profits to the extent of the whole of the balances standing in the register’s report against the respondents Whetstone, administrator, and Raney, respectively, and that the decree appealed from should, be affirmed.
The writer and Justice Dowcell dissent from this conclusion, being of the opinion that complainant’s money decrees should be limited to one-third of the balances referred to. This because in their opinion complainant’s interest in the claim for rents not necessary for the extinguishment of the mortgage corresponds merely with her equitable interest in the land, as the same existed prior to the final decree. That interest is not shown to have been in excess of one-third of the entire equity, which according to the averments of her hill, originally resided in herself and her two brothers in common. The facts that complainant alone filed the bill and is allowed to redeem the entire land do not work an enlargement of her interest in the land before the rendition of the final decree, nor do these facts enlarge her right to such surplus rents which are merely the basis of a personal claim.
The cause will be disposed of here in accordance with the majority opinion.
Dowdell and Sharpe, JJ., dissenting.