50 Ala. 431 | Ala. | 1874
All the contracts sued on are alleged to be payable to the plaintiff in his own name. The plea refers to the time of action brought. It should show that, at that time, there was no right in the plaintiff to recover, or to recover to the extent of his claim; or it should show that this right to recover had been defeated by some matter arising subsequent to the bringing of the suit. The pleas here do not show that the plaintiff is suing in the character of an administrator, but in his own right. Then, his removal as administrator cannot affect this right. It remains the same after the removal that it was before. The plaintiff is the party really interested in the suit, and as such he has the right to sue. Rev. Code, § 2523» Here, the plea shows that the plaintiff, while administrator of Sheppard’s estate, had converted a claim belonging to that estate, by a compromise, into the note in suit. In a case quite similar in principle to this, it is said by this court: “In Tomkies v. Reynolds (17 Ala. 109), it was held, that if an executor, or administrator, lends the money or choses in action of the estate,- without authority to do so, it is a conversion, for which he becomes personally liable; and he may, in such case, sue on the written contract in his own name, notwithstanding he has resigned, or been removed from the administration, unless it be shown that he has in some way been discharged from the liability thus incurred. It was further held, that those representing the estate had the right, if they elected to do so, to interpose, in a proper manner, to arrest the payment to the removed executor, and claim the contract as a portion of the estate.” Bryan v. Wilson, 27 Ala. 208, 215. This is a proper principle to apply to this case. The contrary principle, which the pleas insist upon, would compel the persons interested in the estate of Sheppard to an election of the claim on McGehee, instead of the value of the assets converted to obtain it. The pleas as presented show no sufficient defence to this action.
In tbis view of this ease, the charges asked, as shown in the bill of exceptions, were properly refused.
The judgment of tbe court below is affirmed.