Watson v. Hamilton , 211 Ala. 688 ( 1924 )

I think a reading of the cases now cited in support of the decision in Watson v. Hamilton, 210 Ala. 577, 98 So. 785, to wit, Vanderveer v. Alston, 16 Ala. 494; Kelly v. Kelly, 9 Ala. 909, 44 Am. Dec. 469, and Westmoreland v. Davis, 1 Ala. 299, should suffice to show that they are not authority on the question there presented, which was whether one in possession of money which in good conscience belongs to him under the statute of distributions, all the debts of the estate having been paid, must yield it up to the suit of the administrator, and then, if he would have what belongs to him, file a bill in equity to get it back. Two of the cases referred to, the two first named, had nothing to do with money, but slaves. In such case technical difficulty would stand in the way of a recovery at law, as the court conceded in Batson v. Alexander City Bank,179 Ala. 499, 60 So. 313, the difficulty being that the recovery of personal chattels in specie must be determined according to the legal title; but the court very clearly stated the considerations on which it was held that such rule could not be held applicable to money, which has no earmarks, and allowed the plaintiff to recover a moneyed demand on an equitable right or title. As for the right and justice of the thing, we may quote the language employed, arguendo, by Judge Chilton in Vanderveer v. Alston, supra: "In case of a sole distributee" — and the defendant in Watson v. Hamilton,210 Ala. 577, 98 So. 785, was in as favorable a position as a sole distributee (Fretwell v. McLemore, 52 Ala. 133) — "the claims of creditors aside. I see no principle of public policy requiring the party to push the property through the diminishing process of administration. * * * If he hold it thus free from all demands he should not be required to deliver it to an administrator, that it might be delivered back to him less the expenses. This would be not only unjust, but a useless ceremony." And I can see no reason why proof of the simple facts necessary to sustain the defense proposed in Watson v. Hamilton, supra, viz., that defendant was the owner as distributee, and that there were no debts, might not be made as well in a court of law as in a court of equity. Where there are no debts, the equity of the distributee is perfect; the legal title in the administrator is a naked trust. Fretwell v. McLemore, supra. Trustees may be compelled in equity to execute their trusts. "But where the execution of the trust creates a mere moneyed demand upon the trustee for a sum certain, or which may be reduced to a certainty by a reference to something else, there is no principle of law which would render necessary a resort to equity." Hitchcock v. Lukens, 8 Port. 339. And, of course, these principles operate in favor of a defendant who holds money to which he is entitled ex æquo et bono, as well as in favor of a plaintiff. More reason there is why they should.

As for Westmoreland v. Davis, supra, the opinion in Batson v. Alexander City Bank, supra, sufficiently shows its lack of authority in the case presented in Watson v. Hamilton, 210 Ala. 577,98 So. 785. In addition thereto we may quote from Allen v. Mendelsohn, 207 Ala. 527, 93 So. 416, 31 A.L.R. 1063:

"No agreement is necessary; assumpsit will lie wherever the circumstances are such that the law, ex debito justitiæ will imply a promise. Nor is any privity in fact between the parties necessary. Where one man has money which ex æquo et bono belongs to another, if there be no contract modifying the general liability, the person entitled to the money may recover it in an action for money had and received, and this although he knows nothing of the party who has the right; the law itself creates the privity and the promise. Hitchcock v. Lukens, 8 Port. 333. This is the settled law of this state. Farmers' Bank v. Shut, 192 Ala. 53, 68 So. 363."

While, therefore, I would not deny the equity of this bill, my judgment is that the same facts should have been allowed in the action at law, and that the decision in Watson v. Hamilton,210 Ala. 577, 98 So. 785, wherein it holds the contrary, should not be followed.