Elliott v. Branch Bank at Mobile , 20 Ala. 345 ( 1852 )

GOLDTHWAITE, 3".

We are satisfied tbat the complainant had a perfect remedy at law against the action which, it was the object of the bill to enjoin, and the decree of the chancellor was therefore erroneous. The effect of a sale by an administrator, of the personal property of the estate, has-been frequently considered by this court, and without intending to affirm in this opinion the principles on which those decisions rest, we do not understand that any one of them has gone to the length of deciding, that where the estate has in fact received the consideration of the sale, and the parties really in interest have elected to treat it as an administration, rather than a wrongful conversion of the property, that the representative of the estate, the administrator de bonis non, can recover it. Indeed, the case of Kavanaugh and Wife v. Thompson, 16 Ala. Rep. 818, holding that the distributees, at a settlement with the administrator in chief, might elect to charge him with the property of the estate he had converted, or receive the amount he had recovered, is conclusive on this point, and does not in the slightest degree conflict with Swink, Adm’r. v. Snodgrass, 17 Ala. Rep. 615, in which no consideration was paid by the purchaser for the property, which was fraudulently aliened by the administrator. The result of the decisions is, simply, that a fraudulent sale, or one made by the administrator without authority, is not an administration, unless the parties in interest choose so to consider it; and if they fail to do so, their representative, the administrator de bonis non, can recover the property. The bill, however, charges, that the stock brought its value, that the purchase money was applied to the extinguishment pro tanto of an execution against the estate, that the administrator had charged himself with the amount received, accounted with the Orphans’ Court for the same, and been discharged on a final settlement with such court. Any of the parties interested in the distribution of the estate could, on such settlement, have treated the property sold as unadministered. They choose, however, not to do so, and having made their election, are bound by it. These facts, if proved, would constitute a full defence to the action at law, and this being the case, chancery cannot take jurisdiction.

The decree of the chancellor is therefore reversed, and the bill dismissed, tbe defendant in error paying tbe costs of tbis court and tbe court below.