Duncan v. Stewart
Supreme Court of Alabama
Appeal from the Circuit Court of Russell. Tried before the lion. John Gill Shorter. Assumpsit by Samuel J. Stewart against the appellants, on a promissory note, of which the following is a copy: “$1085. By the 14th day of December next, we promise to pay William Davis, administrator of Samuel J. Stewart, or bearer, one thousand and eighty-five dollars, for value received, this 11th Jan’y, 1851. (Signed) Bryant Dunoan. Geo. D. Hooper.”
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Appeal from the Circuit Court of Russell. Tried before the lion. John Gill Shorter. Assumpsit by Samuel J. Stewart against the appellants, on a promissory note, of which the following is a copy: “$1085. By the 14th day of December next, we promise to pay William Davis, administrator of Samuel J. Stewart, or bearer, one thousand and eighty-five dollars, for value received, this 11th Jan’y, 1851. (Signed) Bryant Dunoan. Geo. D. Hooper.” The plaintiff declared on this note as endorsee of the payee, and added the common money counts; and the defendants pleaded, “ non assumpsit, with leave to give…
1Opinion of the Court
GOLDTHWAITE, J. —
Although the main question in the case is one of first impression, we regard it as a very clear one. The party on whose estate the letters were granted was not dead ; consequently the court acted without jurisdiction, and the administration was void. — Wms. on Ex. 400-1-2, and cases there cited. Davis,' who acted as administrator, was a trespasser, and he stands as a wrong-doer selling property without title; but under such circumstances, the purchaser, while he holds under the contract of sale, cannot resist the payment of the purchase money. — Ogburn v. Ogburn, 3 Por. 126.…
2Cases cited1 opinion
- Harbin v. LeviSupreme Court of Alabama · 1844
3Cited by16 opinions
- Evans v. EvansSupreme Court of Alabama · 1917
- Gill v. MoreSupreme Court of Alabama · 1917
- Broughton v. BradleySupreme Court of Alabama · 1859
- Gwynn v. Hamilton's Adm'rSupreme Court of Alabama · 1856
- Ivey's Adm'r v. OwensSupreme Court of Alabama · 1856
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