45 Ala. 272 | Ala. | 1871
The charge of the court seems to have been based on the assumption that the surrender and cancellation of the first note and mortgage was the consideration of the second, and that the second mortgage was made to the administrators individually, and they could not recover in their representative character.
The debt, for the security of which the mortgages were given, was assets of the estate, and recoverable by the administrators. The second mortgage was clearly made to them in their representative character and for a sufficient consideration. An administrator may sue as such upon a contract made with him in that character, though he is not bound to do so, but may sue in his individual right. — Chit. Plead, p. 21, (12th Am. ed. from 6th Lond. ed.) The complaint in this case was skillfully drawn, and is supported by the evidence.
The judgment is reversed, and the cause remanded.
