51 Ala. 580 | Ala. | 1874
When this case was in this court before (Hill v. Erwin et al. 44 Ala. 661), it was held, that the sale of a decedent’s land, under an order of the probate court, at the instance of the administrator, was a judicial sale; and that the term “ dollars,” as expressive of the consideration to be paid, meant such as would be a legal tender in the payment of debts. From these premises the court deduced the conclusion, that the purchase-money of lands of a decedent, so sold in 1863, could not be shown to have been payable in Confederate currency,, by agreement between the administrator and the purchaser at the time of sale, in a suit by the administrator as such against the purchaser.
The case is now returned to us under a different state of pleading, with additional facts, presenting new issues. It is agreed between the parties, that the plaintiff, Mrs. Hill, was duly appointed administratrix, in 1862, but by the court of the insurrectionary government existing in the State at that time; and that she has not had, either at the sale, or at the commencement of this suit, or at any other time, any other authority to represent the estate than was derived from that appointment. .It is further agreed between them, that “the general issue, and appropriate special pleas, denying the validity of the appointment of the plaintiff as administratrix, denying that she ever was administratrix, denying the validity of the sale of the land, and of the orders of the probate court, and presenting the questions, whether said debt has been paid; and whether the defendants have the right to scale the debt on account of the agreement to take Confederate money in payment thereof; and whether the plaintiff is entitled to recover any, and what amount from the defendants; and any other appropriate pleas, which can be well pleaded, together with appropriate demurrers, replications, and issues, shall be considered as in. The court is to pronounce upon the case o.n the above facts, in the form of a charge to the jury, and a verdict is to be entered in accordance with such decision.”
The facts material to be stated are briefly these: The defendant Erwin bought the land of the intestate, in 1863, at a sale by the plaintiff as administratrix, under an order of the probate court, under an agreement with her that the purchase-money might be paid in Confederate treasury-notes. The land was worth at the time in gold, or its equivalent, about $13,000. He agreed by promissory note to pay over $40,000, and did pay about $32,000, in the promissory notes of other persons, which were received by the administratrix and credited, on his note “ as. so many dollars, which at that time greatly
The agreement of the parties, in reference to the pleadings, seems to admit of any plea, whether in prosecution or defence, admissible in law under the facts stated. Perhaps, the parties ought to be required to make up their issues more definitely. As this case arises under peculiar circumstances, and is not likely to become a troublesome precedent in respect to pleading, we will consider it as presented.
The plaintiff’s administration of the intestate’s estate, and the orders of the probate court respecting it, during the recent war, are not void. Griffin v. Ryland, 45 Ala. 688. But an administrator cannot maintain a suit, in the present courts, by virtue alone of an appointment made under the insurgent government then existing in the State, if the objection is made. Bibb & Falkner v. Avery, 45 Ala. 691. It would be an answer to the objection, however, if the plaintiff had a personal right to recover on a contract made with him in his representative capacity. Harbin v. Levi, 6 Ala. 399. Where an administrator has, in virtue of his administration, obtained the legal title to property of the deceased, he may sue for its recovery in his own name, although he is the legal owner in the character of trustee, unless he has by some means become divested of that character. A foreign administrator, who has reduced the personal property of the deceased there situated into possession, has this right, if the property be afterwards found in another country. Story’s Conflict of Laws, § 516. In Dunham v. Grant (12 Ala. 105) is an explicit decision, that an administrator cannot sue upon a note, an asset of the estate, which he has taken payable to himself as administrator, after his removal from office, although no successor has been appointed. But C. J. CÓllieb, laying stress upon the revocation of the letters, conceded that, under some circumstances, the right to maintain an action would be a conservative power. Judge Obmond, dissenting, held that the right to sue remained notwithstanding the removal, until a successor was appointed. The circumstances of conservative power certainly exist in this case, where there is a fiduciary liability, without a removal, or the appointment of a successor.
Section 2293 of the Revised Code, prescribing how a foreign administrator may maintain an action in this State, is confined to cases of appointment in another of the United States, when no letters have been granted in this State; and the required
It results from these propositions, that though Mrs. Hill cannot maintain this suit by virtue alone of her letters of administration derived from the insurgent authority, she may do so by reason of her legal title to, and beneficial interest in the note, acquired by her administration, and not divested out of her by any subsequent action of a competent tribunal. Her letters of administration, obtained since this appeal was taken, cannot, under the pleadings, give her a better right to sue than she had at the commencement of the suit; but it can, and does, prevent such right as she had from being divested out of her. She was entitled to commence the suit as a trustee administrator; and she may now recover judgment, and enforce its collection, without fear of divestiture, by virtue of her recent appointment. The defendants will not be liable to answer over to another, and no second administrator will be put to another action to recover the money out of her hands.
In ascertaining what amount the plaintiff is legally, justly, and equitably entitled to receive according to the contract,
Tbe judgment is reversed, and tbe cause remanded.