Alabama State Bank v. Glass, 82 Ala. 278

Alabama State Bank v. Glass

82 Ala. 278 | Ala. | 1886

STONE, C. J.

— The determination of this case depends on the proper construction of section 2614 of the Code of 1876. That section reads as follows : “ No suit must be commenced against an executor or administrator, as such, until six months, and no judgment rendered against him, as such, until eighteen months after the grant of letters testamentary, or of administration.” This section is found in chapter 12, title 4, of the Code, and has the heading, “General provisions as to executors and administratorsSome of the provisions of the chapter relate to common-law courts proper, some to Probate Courts, some to Chancery Courts, *280and, as it seems to us, some are applicable alike to each of these tribunals. We think we carry out the intention of the legislature by holding, as we do, that the section copied above applies alike to common-law and chancery courts.

It is not, however, every suit against an executor or administrator which falls within this statutory prohibition. To fall within its provisions, it must be against the personal representative as such. By this we understand, not only that the suit must be against the representative in his representative capacity, but that it must seek to fasten or establish a liability upon or against property of the decedent. Hence, when an outside party claims- adversely to the right or title of such decedent, although the personal representative asserts claim alone in his representative capacity, the suit is not strictly against him as such personal representative. The tort is his own personal tort, if the decedent had no title ; and whether sued as an individual, or in his representative capacity, the statute copied above does not bear on the case. — Sims v. Canfield, 2 Ala. 555; Locke v. Palmer, 26 Ala. 312; Andrews v. Huckabee, 30 Ala. 143, 151; Burdine v. Roper, 7 Ala. 466; Godbold v. Roberts, 20 Ala. 354.

The present case went off in the court below on the pleadings alone. The averments of the bill, which, for this service, must be treated as true, show that Schwartz was a mere man of straw, the instrument of Glass ; that he never in fact owned, or set up any claim to the merchandise; that he never exercised any control over the business; and that the entire adventure was Glass’, who only borrowed, and did business in, the name of Schwartz, to enable him, Glass, to hide the property from the pursuit of his creditors. If this be so, although Schwartz, by lending the use of his name, made himself debtor for the debts so contracted ; yet, as to creditors deceived thereby, Glass became an original debtor, and the merchandise became his for the payment of such debts. A pretended title in one, assumed fraudulently for the purpose of hiding the property of another, is a mere cobweb, which a court of chancery delights to sweep from the pathway of an honest creditor pursuing his rights. On the averments of the bill, the debt was Glass’ debt, and the property his, so far as the claims of creditors are concerned; and section 2614 of the Code has nothing to do with the case.

A paragraph of the opinion in Espy v. Comer, 76 Ala. 501-6, doubtless misled the chancellor, and is probably not sufficiently guarded. That was a bill seeking relief and collection of a debt, due from Hart, the decedent. The establishment of a debt against his estate was the fundamental *281fact in the case. We said, “The personal representative of Hart was a necessary party.” If we had said, “ The personal representative of Hart, whose debt the bill seeks to collect, was a necessary party,” we would have stated the simple facts, and would have avoided misconstruction.

The plea, as filed, was an insufficient answer to the bill as framed, and the demurrer to it ought, to have been’sustained.

Reversed and remanded.