19 Ala. 68 | Ala. | 1851
The commissioners divided the estate, so as
The first count states the indebtedness to have arisen solely out of this, and the plaintiffs’ object was to recover one of the sums awarded by the commissioners. Resting this claim upon the decision of the commissioners, or considering that as having been confirmed by the Orphans’ Court, the result must be the same; for, in either case, we can not hold that the commissioners alone, or they and the Orphans’ Court, could divide and distribute the estate upon that principle, without departing from what has been fully settled in this court. It results from the cases of Teat v. Lee, adm’r. 8 Por. 507; Jones & Conner v. Jemison & Stewart, 4 Ala. 633; and Duval v. Chaudron, 10 Ala. 391; that neither the commissioners, nor the Orphans’ Court, had authority or jurisdiction to require one of those parties to pay a sum of money to another, but if an eqtial division could not be made otherwise, a sale for that purpose Plight have been made under the statute. — Clay’s Dig. 196, § 22. The first count was defective.
2. But if the parties adopted the division with its terms, as made by the commissioners, and acted on it, or made distribution upon the same terms among themselves, they were bound by it. And the second count, we think, was sufiicient for such a cause of action. Debt lies to recover money due upon simple contracts express or implied, and whether verbal or written.— 1 Chit. Plead. 108. The second count is not drawn with technical accuracy, but it is not so defective in substance, as to be liable to a general demurrer under our statute. For the error in sustaining the demurrer to the second count, the judgment is reversed, and the cause remanded.