| Ala. | Dec 15, 1877
The bill in this cause was filed by appellee for a decree to sell mortgaged property to pay a promissory note, which the mortgage was made to secure. The note was given by appellants to the administrator of their father’s estate, who indorsed it to one Pittman, for moneys advanced by the latter to pay taxes, and other debts of the estate having priority of payment; and Pittman assigned it to appellee. The estate was insolvent, and was under administration as such; and appellants, who were defendants in the Chancery Court, claimed to be its largest creditors. Probably they were so, though no evidence on that subject was introduced; nor was any charge made in their answer, of fraud on the part of the administrator, or of insolvency. The bill was demurred to; and the defense relied on is, that, under the statutes of this látate, which require sales of the property belonging to the estates of deceased persons to be made at auction, the administrator had no right to transfer the note in suit to Pittman; and that, therefore, his assignee, the complainant, acquired no title to it.
On the subject of the power of an executor or administrator, this court said, in Waring v. Lewis (53 Ala. 630): “He has the full legal title to the dioses in action of the deceased, and is charged with the duty of collecting them, and reducing them to possession. He may transfer, release, compound, or discharge them, as fully as if he was the absolute owner, subject only to his liability to answer to creditors and distributees, for improvidence in the exercise of his power. No bona fide dealing with him can be impeached — no remedy can be pursued against those to whom he may transfer, or whom he may release, or with whom he may compound, or from whom he accepts satisfaction, of the dioses in action, unless fraud or collusion can be imputed to them.” Under this ruling, the defense cannot be sustained.
Let the decree of the chancellor be affirmed.