Campbell v. American Bonding Co. of Baltimore, Md.

• Decision Date: 13 April 1911
• Citation: 172 Ala. 458,55 So. 306
• Parties: CAMPBELL v. AMERICAN BONDING CO. OF BALTIMORE, MD.
• Court: Alabama Supreme Court

55 So. 306

172 Ala. 458

CAMPBELL v. AMERICAN BONDING CO. OF BALTIMORE, MD.

Supreme Court of Alabama

April 13, 1911

Appeal from Law and Equity Court, Madison County; Tancred Betts Judge.

Action by Jennie L. Campbell against the American Bonding Company of Baltimore, Md., as security for James Hughes, as administrator of the estate of John Hughes, deceased. Judgment for defendant, and plaintiff appeals. Affirmed.

The effort is to hold the surety liable to the defendant in execution for money collected on a judgment recovered by the administrator, which was reversed and set aside on appeal the said Hughes failing and refusing to repay the money thus obtained.

Cooper & Cooper, for appellant.

Walker & Spragins, for appellee.

McCLELLAN J.

Assumpsit as for money had and received, against a surety on an administrator's bond.

The liability of the surety sued must, of course, depend upon the liability of the principal, the personal representative as such. If the liability of the administrator is individual, personal, the surety cannot be held, for his assurance is for the faithful performance of the administrator's duties in his representative capacity alone.

A test of representative or individual liability is whether the judgment, the suit against the administrator as such would invite, would "fasten or establish a liability upon or against property of the decedent." Ala. State Bank v. Glass, 82 Ala. 278, 2 So. 641; Burdine v. Roper, 7 Ala. 466; Weeks v. Love, 19 Ala. 25; Godbold v. Roberts, 20 Ala. 354.

Again, the accountability of the administrator in his representative capacity is limited to assets of the estate of his decedent. Spotswood v. Bentley, 132 Ala. 266, 31 So. 445; Daily v. Daily, 66 Ala. 266.

No promise implied by law can be raised against the estate of a decedent in consequence of the personal representative's engagements or acts in respect of matters he could not, as such administrator, expressly bind the estate of his intestate. Godbold v. Roberts, supra.

The money sought to be here recovered of the surety came into the hands of the administrator by virtue of a decree of the Madison chancery court, foreclosing a mortgage, which decree was afterwards reversed in this court. See Campbell v. Hughes, 155 Ala. 591, 47 So. 45. That reversal wholly annulled the decree assailed. Marks v. Cowles, 61 Ala. 299.

It also conclusively established the fact that the money now sought...