Wilkinson v. Hunter , 37 Ala. 268 ( 1861 )

A. J. WALKER, C. J.

We assume, that the failure of the appellant to obtain a different decree against Davis, more favorable to the estate which he represented, was not the result of any fraud or negligence on his part, for the record does not authorize us to impute either to him. When the decree was rendered in his favor, it was his duty to demand from his predecessor the evidences of debt ordered to be delivered to him, and, upon a refusal of his demand, to proceed to obtain the enforcement of the decree. It being shown that the decree for the delivery of the choses in action was rendered in his favor, the onus was upon him to prove that he had used due diligence to obtain their delivery; and as he failed to prove, in the court below, that he had made an effort to procure such delivery, or that.he could not have.procured such delivery by the use of diligence, it was proper for the court below to hold him guilty of negligence, in failing to obtain possession of the choses in action. But, whether he was guilty of negligence, in failing to obtain delivery of the choses in action, or obtained possession of them, and then failed to collect them, he would only be responsible for money to the amount which, in the exercise of due diligence, he could have collected upon them. The court should have inquired, therefore, to what amount the choses in action could have been collected by him, if he had exercised proper diligence in an effort to make such collection. As to that inquiry, the onus of proof was on the appellee ; for the law could not presume, that choses in action, not resulting from sales of property made by the appellant, but coming to him from the hands of his predecessor, were capable of collection. The correctness, therefore, of the decree rendered against the appellant, depends upon the question, whether' the evidence justified the conclusion, that, by the exercise tif proper diligence, he could have realized from the choses in action, which his predecessor was ordered to' deliver'to him, the amount with which he was charged.

Among the choses in action directed 'to be delivered to the appellant, there were three accounts — one on Thomas Cobb, and two on William Teverett — as to which there was no proof, except that Cobb and Leverett were solvent. This evidence was not sufficient, of itself, to authorize the charging of the appellant with’the amount of those accounts. The accounts were not prima-facie evidence of indebtedness 9 and the administrator could -not be chargeable with the amount of them, in the absence of evidence that they were debts susceptible of enforcement in courts of justice. There were several other accounts, and receipts for accounts, as to which there was no proof whatever 9 and with these, upon the evidence before the court, the appellant was not chargeable.

The proof did not justify the charging of the appellant with the amount of the decree against Elizabeth Baker, because there was nothing which authorized the inference, that the defendant in that decree, or the sureties liable therefor, were solvent after the appellant became administrator.

The proof before the probate court did not authorize that court to charge the appellant with the amount of the judgment against W. W. Boazman, F. T. Boazman, and John L. Garrett. 'Conceding that F. T. Boazman’s possession of a tract of land raised the presumption that the land belonged to him; yet-the value of the land was not shown; and it cohld not be inferred, therefore, that either the entire judgment, or any specified part, could have been collected out of the land. Whether, in the attitude of the case made by the proof, the onus as to the exemption of the land from execution was upon the one party or the other we do not decide. If, upon a future trial, it should appear that Boazman really owned a tract of land, the parties can easily settle the question, whether the land was exempt from execution, by introducing testimony on the point. The mere fact that Garrett, one of the defendants in the judgment, returned from Louisiana, and sold a lot of land for fifty dollars, did not show that the appellant could, by the use of proper diligence, have subjected the land to the payment of the judgment. Garrett was not in the possession of the land, so as to afford notice of his proprietorship; and it cannot be presumed that the appellant was guilty of negligence, in failing to discover the ownership of the land, when there w’as no visible indication of the fact. We mention, without comment, the fact that the proof leaves to conjecture the important question, whether Garrett had such a title to the land as was subject to sale under execution; and that it also- léaves room for speculation, as to. whether he sold the land for himself, or for another.

The principles- above laid-down, as to the claims which have been specially- considered-, will be sufficient to govern the probate court -in passing upon- the other items.

The judgment is reversed, and the cause remanded.