22 Ala. 558 | Ala. | 1853
The first assignment of error does not 'bring to our notice its subject matter in such a manner that we can here regard it. There seems to have been no exception taken to the ruling of the court below; and in such cases, the rule of this court is, not to revise the decisions of the inferior tribunals upon facts, unless the objection is made at the time of the decision, and this is made to appear by bill of exceptions, or otherwise by the record. Gordon et al. v. McLeod, 20 Ala. 242.
In refusing to charge the defendant with the rent of the lands, as shown in the bill of exceptions, we think the court erred. We see no reason why he should not be called to account for those rents, as well as for any other assets in his hands; for assets they undoubtedly were. If he used and cultivated the lands, for his own benefit, he was clearly chargeable with reasonable rent for them; and for the years that he rented them out, the nett proceeds belonged to the distributees, as much as any other funds in his hands derived from the estate. We presume that the court below based its decision upon the idea, that inasmuch as the lands descended to the heirs, and the administration having commenced prior to the passage of the act of 1839, authorizing administrators to rent out the lands of estates, therefore these rents were not assets of the estate. It is true, the act of 1839 cannot have a retrospective operation; and in the case of an administration of an estate of an intestate commencing before the passage of the act, the decision of the court would have been correct.
For the errors above noted, the judgment of the court below is reversed, and the cause remanded.