Page v. Skinner

Decision Date29 November 1929
Docket Number3 Div. 899.
Citation125 So. 36,220 Ala. 302
PartiesPAGE v. SKINNER.
CourtAlabama Supreme Court

Rehearing Denied Dec. 19, 1929.

Appeal from Circuit Court, Conecuh County; John D. Leigh, Judge.

Action for conversion by J. W. Skinner, Jr., as administrator of the estate of Charles Robbins, deceased, against Allen Page. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals. Affirmed.

Jones &amp Jones and Edwin C. Page, Jr., all of Evergreen, for appellant.

Hybart & Dickey, of Evergreen, for appellee.

BROWN J.

This action is by the administrator of the estate of Charles Robbins, deceased, to recover $118 in currency, alleged to have been converted by the defendant.

The complaint consists of two counts, the first in assumpsit for money had and received, and the second, trover, for wrongful conversion. The verdict of the jury was for the plaintiff under the second count.

Therefore conceding appellant's contention that pleas 3 and 5 stricken on motion of the plaintiff, and plea 6, which the court denied defendant permission to file, were pleas in bar the rejection of these pleas was without error, for the reason that the matters presented were merely in negation of the plaintiff's right to recover, and were admissible under the general issue. Barrett v. City of Mobile, 129 Ala. 179, 30 So. 36, 87 Am. St. Rep. 54; Barksdale v. Strickland & Hazard (Ala. Sup.) 124 So. 234.

The defendant had full benefit of all defenses available to him under the general issue peaded "in short by consent," upon which issue was joined.

With the last-mentioned plea in the case, action of the trial court in striking defendant's plea 4-ne unques administrator-if error, was without injury. Moreover, the evidence adduced by the defendant disproved plea 4.

The plaintiff offered evidence going to show that plaintiff's intestate, Charles Robbins, on the day of his death, had in his possession two purses containing United States currency, referred to by the witness as greenbacks; that he had these purses in his possession at a church meeting and contributed from the money to a fund for church purposes; that about 9 o'clock that night, after the services had concluded, his body was found near the church, his pockets turned inside out, and the purses were missing; that they were afterwards found some distance from the dead body with the contents gone.

Joe Thomas, who was seen at the church on the night of Robbin's death, was arrested, and when searched, it was found that he had concealed in his socks $107 in currency, and under the lining of his hat $11 in one dollar bills. At the time the money was taken, Thomas, according to one witness, stated that the money belonged to the plaintiff's intestate, Charles Robbins. This money was turned over to the defendant, while acting as justice of the peace and special coroner holding an inquest, to ascertain the cause of Robbins' death, and who, if any one, was responsible therefor.

The evidence further shows that Thomas was subsequently indicted, tried, and convicted for the murder of Robbins.

After the money came into the possession of the defendant, he deposited it in the bank and paid it out to the attorneys who represented Thomas on his trial, in response to a written order issued by Thomas, in the following words: "Please deliver to Messrs. Ballard & Page, the money taken from my person at the time I was arrested, charged with the murder of Charles Robbins."

On the trial the defendant offered to show that Robbins, at the time of his death, was a resident of this state; that he left surviving him Katie Robbins, his widow; and that his personal property, including the money in controversy, was of value less than $1,000. On the objection of the plaintiff, this testimony was rejected.

The appellant's contention here is that under the stated circumstances the legal title to the money, in Robbins' possession at the time of his death, passed to his widow under the exemption statutes, and therefore the plaintiff who sues as administrator of Robbins' estate cannot recover.

It must be conceded that for the plaintiff to recover under the trover count, he must prove property in himself, and the right to the possession of the chattel or thing at the time of its conversion. Barksdale et al. v. Strickland & Hazard, supra; Corbitt v. Reynolds, 68 Ala. 378; Elmore v. Simon & Bro., 67 Ala. 526.

Under the principle of the common law, and without regard to the provisions of section 5802 of the Code defining the duties of executors and administrators, the title to the personal property belonging to the estate, except as otherwise provided by statute, passes to the personal representative who succeeds, not only to the title, but all benefits accruing from the prior actual possession of his decedent. Butler v. Gazzam, 81 Ala. 491, 1 So. 16; Waring v. Lewis, 53 Ala. 615; Van Hoose, Trustee, v. Bush, 54 Ala. 342; Baldwin v. Hatchett, 56 Ala. 461; Ferguson v. Morris, 67 Ala. 389; 3 Brick. Dig. 464, § 139. To state the proposition in a different form, as against all persons except the exemption, the personal representative stands in the shoes of his decedent, and one sued for the wrongful conversion of personal assets of the estate, where it appears the personal representative or his decedent had prior actual possession, may not set up an...

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  • Fidelity-Phenix Fire Ins. Co. of New York v. Murphy
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    • January 23, 1936
    ...So. 192; Id., 227 Ala. 400, 150 So. 491; Fidelity-Phenix Fire Ins. Co. of New York v. Murphy, 226 Ala. 226, 146 So. 387; Page v. Skinner, 220 Ala. 302, 125 So. 36. The indictment was found under sections 487, 491 of United States Code Annotated, title 18, for entering into a conspiracy, and......
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    ...as presumptive proof of the commission of the crime."' This court has virtually adopted that theory in our recent case of Page v. Skinner, 220 Ala. 302, 125 So. 36. such reasoning the Supreme Court of Virginia in the recent case of Eagle, Star & Br. Dom. Ins. Co. v. Heller, 149 Va. 82, 140 ......
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    ...what was said in the foregoing excerpt tended to support the ruling of the trial court on the second trial. But, in Page v. Skinner, 220 Ala. 302, 304, 125 So. 36, 38, a civil action by an administrator for money had received, wherein evidence tended to show the money sued for was the prope......
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