| Ala. | Dec 15, 1878
There can be no doubt, that before a creditor can maintain an action at law on the bond of an executor or administrator, he must first have established his debt or demand by the judgment or decree of a court of competent jurisdiction; nor can it be doubted that such judgment or decree against the executor or administrator, in the absence of fraud, is conclusive evidence against his sureties of the existence of the debt. The appellants admit this to be true as to the sureties on the bond, at the time the judgment or decree is rendered; but insist it is true as to them only, and not as to sureties who subsequently join the executor or administrator in the execution of an additional bond — as to such sureties, it is urged, the judgment is res inter alios acta. The question is not of importance in this case. There was no attack on the validity of the judgment — no denial that the plaintiff had a just demand against the intestate of the defendant, May. The judgment was introduced for no other purpose than to prove its existence — the fact of its own rendition, and the legal consequences resulting — the duty and obligation resting on the administrator to apply the assets coming to his hands, to its satisfaction. To this extent, it was admissible against all the world, strangers, as well as parties and privies. — Freeman on Judgments, § 417; Ansley v. Carlos, 9 Ala.; 1 Starkie on Ev. 188.
Nor is it necessary to inquire whether the sureties on an additional bond given by an administrator, are liable for the past defaults of their principal, or for such only, as occur after the execution of the bond. The evidence showed that the administrator had about two months before the execution of the bond on which the suit is founded reported to the court of probate, the sale of lands of the intestate, and that he had received the purchase-money to an amount exceeding six hundred dollars; and asked a confirmation of the sale and authority to convey to the purchaser. True, this report is silent as to the time of the payment of the purchase-money, but that is immaterial — the money must then have been in the hands of the administrator, or he was not dealing fairly with the purchaser, to whom he was bound to return it, if the sale was not confirmed ; and it can not be presumed by a waste or conversion of it, he had disabled himself from performing the duty. The sale was confirmed, and after its confirmation, the money became assets, primarily, liable for the payment of debts. Unless a waste or conversion is presumed, the money must have been in his hands, when the present bond was executed; for there
The evidence also showed that the intestate had lands in Dallas county unsold, of the probable value of fifteen hundred dollars, and of the annual rental value of two hundred and fifty or three hundred dollars. It was the duty of the administrator to have rented these lands. The statute conferred on him the power, and the power involved the duty; and for loss or damage resulting from a neglect of the duty, he and his sureties are liable. — James v. Faulk, 54 Ala. 184" court="Ala." date_filed="1875-12-15" href="https://app.midpage.ai/document/james-v-faulk-6509248?utm_source=webapp" opinion_id="6509248">54 Ala. 184; Pearson v. Darrington, 32 Ala. 227" court="Ala." date_filed="1858-01-15" href="https://app.midpage.ai/document/pearson-v-darrington-6506224?utm_source=webapp" opinion_id="6506224">32 Ala. 227. So far as is shown, without cause, he had neglected the duty for the year 1876; and for loss resulting from it, the sureties on the present bond are liable. It was a duty existing when the bond was executed, and continuing subsequently during the entire year. Adding the value of the rent, to the moneys in the hands of the administrator, and there were assets sufficient for the satisfaction of the plaintiff’s judgment. The City Court so finding, rendered judgment against the appellants, and we think its judgment should be affirmed.