Winfrey v. Clarke , 107 Ala. 355 ( 1894 )

HARALSON, J.

Under the general rule in equity, on the facts stated in the bill, the complainant was entitled to maintain it against defendants for the collection of his debt. — 3 Rom. Eq. 1758, § 1154; 2 Story’s Eq. §§ 1250-51; Cameron v. Cameron, 82 Ala. 392; Dunlap v. Newman, 47 Ala. 429.

The two Alabama cases just cited hold, that where persons, without administration, take possession of and convert to their own use, the estate of a decedent, they hold it as a trust fund in their.hands, which a creditor of the decedent may subject to the payment of his debt by a bill in chancery filed for that purpose. It is evident, however, that these cases were decided upon the general rule prevailing in equity courts on this subject, overlooking section 2271 of the Code. That section provides, that “No person is liable to an action, as executor of his own wrong, for having taken, received, or interfered with the property of a deceased person, but is liable to the executor or administrator for the value of all the property so taken or received, and for all damages caused by his act to the estate of the deceased, ” &c.

It is quite obvious, that the principle as expressed in the third head-note in Cameron v. Cameron, supra, and in the second head-note in Dunlap v. Newman, supra, so correct otherwise, is directly opposed to said section 2271 of the Code. And these decisions, in the respect indicated, are contrary to the rulings of this court, in the construction of said statute, in Abernathy v. Bankhead, 71 Ala. 190, and must be overruled.

If John W. Landman, the surviving partner of W. N. Winfrey & Co., and one of the makers of the note the bill is filed to collect, is solvent, — and the contrary does not appear, — it would seem the complainant has an adequate remedy at law for the enforcement of his debt.

The demurrer to the bill should have been sustained.

Reversed and remanded.