54 Ala. 592 | Ala. | 1875
-We are not informed on what ground the court of probate proceeded in vacating, at a term subse
The appellant was the .surety on the bond of Wilson, liable for his defaults. Whatever balance was due from Wilson, when legally ascertained, became a debt due from appellant. That balance having been legally ascertained, in a judicial proceeding to which appellant was a party, he became as liable for it as he would have been for a promissory note, or bond, executed by him to the intestate. He alone had the right to sue for, and to receive satisfaction of the decree of the court of probate. It was rendered, and properly rendered, in his favor. As surety of Wilson, he became liable to pay it, on its rendition. The right to demand, and the obligation to pay, co-existing in him, as to his cestuis que trust, those for whom he is bound to exercise the right to demand, and for whom he is bound to discharge the obligation to pay, the debt was extinguished. A presumption of its payment arises, because that was the duty resting on the appellant. — Bagland v. Calhoun, 36 Ala. 606. Suit against him to recover whatever balance was due from Wilson, was impossible, after the rendition of the decree. That decree was conclusive of the extent of Wilson’s liabilities, in the absence of fraud and collusion; conclusive on the creditors and distributees of the common intestate of Wilson and the appellant, because rendered in a proceeding to which appellant, their representative and trustee was a party. If they had sought any remedy, legal or equitable, against the personal representative of Wilson, or against appellant as surety on the administration bond of Wilson, not founded on the decree, they could have pleaded the decree in bar, as a debtor to the intestate could plead in bar a judgment against him in favor of the personal representative. Whatever remedy was pursued against Wilson’s administrator after the decree, must have been founded on it, because it was conclusive of Wilson’s liability. It is conclusive on appellant, not because he is surety of Wilson, and as a decree rendered on a settlement made by Wilson in his life would have been, because it was an act done in the regular course of administration, within the condition of his bond, but because he is a party to it, and the actor procuring it. This fact distinguishes the case from Jenkins v. Gray, 26 Ala. 100; Gray v. Jenkins, 21 Ala. 516; to which we are referred, holding the sureties of
The settlement and decree ascertained a debt, part of the assets the appellant wag' charged with the duty of administering. It was a debt he was bound to pay, and he was properly charged with it, by the decree of the court, on his final settlement.&emdash;Ragland v. Calhoun, 36 Ala. 606; Purdon v. Tipton, 9 Ala. 914.
There is no error in the record, and the judgment must be affirmed.