44 Ala. 661 | Ala. | 1870
Lead Opinion
This was an action of debt brought by Susan Hill, as the administratrix of the estate of Charles
From a bill of exceptions taken at the trial, it appears that Mrs. Hill, as the administratrix of the estate of her husband, Charles W. Hill, deceased, obtained an order of the probate court of the county of Greene, in this State, to sell the real estate of said deceased for the payment of debts. This order of sale seems to have been Regularly made and granted, and under its authority, and in conformity to the same, she offered for sale certain lands of her said husband, which are described in said order by their proper land office designation, on the 10th day of February, 1863. At said sale, said Erwin became the purchaser of said land, at the sum of $40,386 98, and gave his note for this sum, with securities as required by law, payable on the 1st day of March, 1864. The proceeding on this sale was returned to the judge of probate, who had ordered the same, and the sale was confirmed as required by the statute in such case made and provided. The order and sale upon the face of the record appear to have been perfect and regular. It was a judicial sale. The law, then, fixes its terms, and denies to the administratrix the power to sell on any other terms. But there is no attempt to impeach the regularity of the sale.
The only question, then, raised is, whether a sale by an administratrix of the real estate of the deceased for' the payment of debts, which appears regular on its face,, and which purports to have been made on a credit for a certain sum, payable in “ dollars/’ can be shown, in such a proceeding as this, to have been made for Confederate treasury-notes or bonds.
Such a sale must be for money; either to be paid down at the conclusion of the sale in cash, or at a future time, on the termination of the credit allowed. But when the debt thus contracted becomes due, it must be paid in
The laws of this State in force at the commencement of the late rebellion continued in force until its suppression, except, possibly, the statute of limitation. — Michael v. The State, 40 Ala. 361; Coleman v. Holmes, January term, 1870. And there was no competent authority within the State during the rebellion to enact valid laws. The legislature of the insurgent government, in this State, during this period, can not be regarded as a lawful legislature, or its acts as lawful acts — Texas v. While, 7 Wall. 700, 732. There was no law,- then, passed by the insurgent government, in this State, during the insurrection, that can, in any manner, effect this sale, or which can make Confederate treasury-notes money, in the sense that is contended for by the appellees.
Confederate treasury-notes can not be said to be “money” in any just legal sense whatever. They were the creatures and offspring of a political organization, which was forbidden by law. The power that put them in circulation
Confederate treasury-notes never did come up to these requisites. Their very payment was, from the beginning,, highly problematical, and in the end, they became mere nullities. — 40 Ala. 461. Such a currency was not that which was contemplated by the statute authorizing and regulating the sale of decedent’s estates, for the payment of debts, by their representatives. These notes were not the lawful circulating medium of the country. — Mann v. Mann, Exr’s, 1 John. Ch. pp. 231, 232; Co. Litt. 207, a; 13 East, 20; Hale Houston v. Sims & Co., January term, 1870; 8 Bac. Abr. Bouv. p. 37, (B.) 8.
This case is different from that of Thorington v. Smith, 8 How. 1. In that case the parties made the terms of their contract themselves ; and they could affix whatever
The fourth charge asked by the appellant, in the court below, was in conformity with this construction of the law, and it was error to refuse it.
It is presumed that this exposition of the statute regulating the sale of the real estate of decedents, by their representatives, will furnish a solution of all the other questions raised upon the bill of exceptions in this case ; therefore, they will not be further considered.
The judgment of the court below is reversed, and the cause is remanded for a new trial.
The chief-justice concurs in the result of this opinion.
Dissenting Opinion
(dissenting.) — Inasmuch as the probate court was authorized, and almost required to regard Confederate treasury-notes as a valid payment for land sold under its decree, if the evidence showed the vendee purchased it with the understanding that it might be paid for in such currency, and on that account brought a nominal price greatly in excess of its value, it seems to me that he is entitled to relief as in cases of individual contraéis.