King v. Green

2 Stew. 133 | Ala. | 1829

By JUDGE WHITE.

In the opinion of the Judge who presided in the Court below, and which is filed of record, the case is assimilated to one, where, in a note given to an administrator, he becomes security for himself. In England, when a creditor appoints his debtor executor, when his own creditors will not be injured, and there is nothing expressed in the will to the contrary, it will operate as an extinguishment of the debt, on the principle that from such an act of the testator, it may reasonably be infereA, that such was his intention. In that case, the party himself acting in his oivn right, having destroyed the remedy, it is forever gone. But it is otherwise where administration of the estate is committed by the act of the law to a debtor. There the remedy is only suspended for a time, by the legal operation of the grant. Thus, if the obligor of a bond administer to the obligee, and die; a creditor of the obligee, having obtained administration da bonis non, may maintain an action for such debt against the executor of the obligor. So, if the executrix of an obligee marry the obligor, such marriage is no release of the debt, and the husband may pay it to the wife in the character of executrix; and if he do not, the remedy is suspended only, by the legal effect of tire coverture; and on her death, tbe administrator de bonis non of the testator will be equally entitled to that debt, as to any other outstanding.^b In the first volume of Chitty’s Pleadings, it is said,^c that if an executrix marry a debtor to her testator, the right of action is only suspended during the coverture; and if she survives, she may, in the character of executrix, sue the representatives of the husband, as the wife surviving is entitled to all actions in auter droit.. From these principles it results, that if the bond on which this action is founded must be esteemed assets in the hands of the administratrix, o.r in other words, if she held it in auter droit, then her marrying one of the obligors would only suspend the remedy, but not destroy the right. In Ihe book last cited ^d it is expressly laid down, that an executor may sue as such, upon a contract made with him in that character, as for goods sold by him as executor, and in other cases where the sum to be recovered would be assets; Other authorities might be adduced to the same points, not only that in such cases he may sue as executor, but that the price of goods sold by him, in the character of executor, are assets; and if this will hold in England, it is more especially true in this State, where executors and administrators ' are not only permitted, but required to sell the perishable estates of decedents upon credit. Bonds and notes therefore taken at such sales, would be held by them, not in their own right, but as assets, in the right of others. And hence upon their death, resignation or removal, such notes or bonds would pass to those entrusted with the further administration, as part of the estate unadministered. It follows as a fair deduction from what has been said, that in the present action, one of the obligees, who was administrator, having married an obligor to the bond sued on, which bond she held as assets, the remedy was merely suspended, and not destroyed as if it had been held in her own right, for her own benefit. And this suspension of the right to sue would have continued during coverture, but for her resignation and the appointment of another to finish the administration. When this was done, this disability was removed, the right of action restored, and as we conceive properly asserted and fairly sustainable.

But it is said the judgment is of a character, that the writ of error cannot be prosecuted; and should be dismissed. We are of a different opinion. The record shews that by agreement, the Judge took the papers, decided the case in vacation, and having returned them to the clerk, a reference was had to his determination, and a judgment was entered, not exactly in form, but as we conceive, sufficiently so to be reversed, if erroneous; and we believe it was erroneous.

The judgment must be reversed, and the cause remanded, ■

b Toller on Ex’rs. 272, 273.

c Vol. 1, p. 22;

d Page 13,