Boynton v. McEwen , 36 Ala. 348 ( 1860 )

A. J. WALKEN, C. J.

The defendant, being the administrator of an insolvent estate, rented out the land of the estate at public auction, until it was sold under a mortgage, given by his intestate, and appropriated the money received for rent to the discharge of the debts and expenses of administration. The heir sues in this case to recover the rent so collected and paid over; and we decide that the action cannot be maintained.

The Code, in section 1737, devotes the whole property of the decedent, with the exceptions specified in section 1738, to the payment of his debts; and, in section 1751, authorises.the representative to rent the lauds of the deceased at public auction, and declares the proceeds of the renting' to be assets of the estate. The authority to rent is not here confined to solvent estates; and there is nothing whatever in the Code, from which such restriction of the authority can be inferred. Before the Code was adopted, the authority to rent applied only where the estate was solvent. — Patton v. Crow, 26 Ala. 426; Long v. McDougald, 23 Ala. 413; also, Bank v. Fry, 23 Ala. 770. The statute of 1839, which then gave the authority to rent, was not materially different from the law now in force. — Clay’s Digest, 199, § 37. If this court had, before the adoption of the Code, construed that statute so as to confine its authority to the renting of lands of sob vent estates, it would have been our duty to regard the re-enactment of the substance of the statute as an adoption of the construction previously given to it, and to have followed that construction. But it is clear that the confinement of the authority to rent to solvent estates was not the result of a construction of the act of 1839, but was the necessary effect of the act of 1822, which made a failure to apply for leave to sell the laud of an insolvent estate equivalent to the perpetration of a devastavit. — Clay’s Digest, 198, § 27. This last named statute was regarded as imperatively requiring the representative to obtain an order and sell the land, when the estate was insolvent; and being so understood, it necessarily prohibited a renting. ' That statute, not being carried into the Code, is repealed. The ground upon which the authority to rent the land of an insolvent estate was denied, is thus removed; and we thus have a rather significant indication of an intent to change the law. We certainly have now a general authority to rent,-unqualified by'any other statute; and no reason occurs to us why an exception as to the lands of insolvent estates should be inferred. There are cogent reasons why the authority to rent should apply to insolvent estates. The title to the land may be involved in litigation, which would render a speedy sale imprudent. The application to sell may itself give rise to a protracted suit, pending which it would be expedient to rent out the land. Or a controversy, as to the amount of - debts to be paid, may reuder it probable that a sale of the entire land will not be necessary, and make it greatly to the interest of the heir that there should be a postponement of the sale and an intermediate renting. Other contingencies may-arise in which a renting would be proper. We think, therefore, that there is no reason, growing out of the insolvency of the estate itself, for denying the authority to rent the land belonging to it; and we think the statute, in.the legitimate force of its terms, bestows the authority, while it is unqualified by any other provision of oúr present system.

The judgment of the court below is reversed, and the causA-emanded.