ADMINISTRATION OF ESTATE-Continued.
istence of the former statute. Aycock v. Johnson, 405.
4. Illustration; when amended statute cannot be pleaded.-If the
former statute of eighteen months had been running against a
claim for less than six months, when the amendatory statute
was enacted, such time would not be computed as a part of
the twelve months allowed by the amended statute, but the
party would be allowed twelve months after its enactment;
but if the statute of eighteen months had been running more
than six months, the amended act would not give the holder
of the claim twelve additional months within which to pre-
sent his claim, nor could the latter act be pleaded in bar be-
cause the claim had not been presented in twelve months.
The holder of the claim would be allowed the benefit of the
statute of eighteen months, but not a longer period. Ib. 405.
5. Presentation, when sufficient.-Where the evidence shows that a
demand was made upon an administrator as such to pay cer-
tain notes, described by naming the makers merely and the
amount due thereon, and it is shown the administrator knew
what claims were referred to, and by whom they were held, is
a sufficient presentation. Ib. 405.
III. ADMINISTRATOR'S SALE OF LANDS.
6. Interest of personal representative in lands.-A personal repre-
sentative has no interest in his intestate's lands; they pass,
as at common law, to the heir at the instant of the death of
the ancestor, subject to be intercepted by the power conferred
by the statute on the personal representative, to be exercised
in the mode and for the purposes specified by statute to pay
debts of the deceased, or to effect a division between the heirs.
A prayer to a bill seeking to have the legal title to lands, of
which the intestate owned the equitable title, divested, and
vested in the personal representative, instead of the heirs, is
improper, although it is also prayed that the lands be sold
at the same time for the payment of debts. Brown v. Mize, 10.
7. Purchase of lands by administrator at probate sale; when void.
Where an administrator, individually, purchases lands at a
sale under a decree of the probate court, for distribution
among the heirs, reports the sale and same is confirmed with-
out notice to the heirs and distributees, a conveyance to him
by a commissioner appointed for that purpose is void, al-
though the entire purchase money was paid and distributed.
Smith v. Lusk, 394.
8. Probate sale of lands; conveyance of title to administrator pur-
chasing at his own sale, without notice to heirs invalid.-
Where, on an application of the administrator, the lands of a
decedent are sold under order of the probate court, and pur-
chased by administrator individually, who reports the pay-
ment of purchase money, and makes an application for an
order for the conveyance of title, such application is regarded
as made in his capacity of purchaser, instead of in his rep-
resentative capacity, and notice to the heirs is essential to the
validity of the order, and when such notice is not given, the
probate court acquires no jurisdiction to adjudicate the ques-
tion of payment, or to order the conveyance of title. Wash-
ington v. Bogart, 377.
9. Notice to mortgagees and judgment creditors of infirmity of title
by probate proceedings.-Mortgagees and judgment creditors
of the purchaser of lands at a sale by order of the probate
court are chargeable with notice of the infirmity of the title
by reason of illegality of the proceedings to convey title, and
ADMINISTRATION OF ESTATE-Continued.
can assert no lien to such lands as against the prior rights
of the heirs. Ib. 377.
10. Notice of final settlement not sufficient to authorize conveyance of
title. The fact that the heirs of the estate are before the pro-
bate court on a final settlement of the estate, in which the ad-
ministrator accounts for, and is charged with the purchase
money of lands of the estate purchased by him, and decrees
are rendered in their favor for their distributive interests in
the estate including such purchase money, cannot be con-
strued as notice of an application to convey title to such
lands, made on the same day and on the heels of such
settlement, nor cut off the right of the heirs to enforce their
legal title held as security for the purchase money entering
into such decrees. Ib. 377.
11. Commingling of funds.—A decree in favor of an heir or distribu-
tee of an estate for his distributive interest including per-
sonal assets as well as the purchase money for lands of the
estate, does not constitute such commingling of funds as to cut
off the right of the heir to enforce his title as security for
the purchase money entering into the decree, if the amount
of such purchase money can be reasonably ascertained. Ib.
377.
12. Lien of registered judgment.-Registered judgments are liens
only on the property of the defendant in the county where reg-
istered, which is subject to levy and sale under execution,-
property to which the defendant has the legal title or a per-
fect equity, and where the debtor purchased lands at a pro-
bate sale, and has not paid the whole of the purchase money,
he has no title to which the liens can attach. Ib. 377.
13. Title to lands sold under probate proceedings passes in solido.—
Where lands of an estate are sold under order of the Probate
Court for division among the heirs, the entire land remains
as security for the whole of the purchase money, and so long
as any part of the purchase money remains unpaid the pur-
chaser has no title, legal or equitable, to the interests of heirs
who have been fully paid to which the lien of a registered
judgment may attach. Ib. 377.
14. Imperfect equity subject to mortgage.-The purchaser of lands of
the estate of decedent under order of the probate court, be-
fore payment of the entire purchase money, or the convey-
ance of title, may convey his imperfect equity therein by
mortgage. Ib. 377.
IV. SETTLEMENT AND DISTRIBUTION.
15. Right of distributees to settlement in chancery. The probate
court not having taken jurisdiction for the settlement of an
estate, the distributees have a right to go into the chancery
court for a settlement without alleging any special equity.
Noble v. Tate, 399.
16. Duties of executrix coupled with other trusts; when equity will
enforce. Where the will of the testator provides that the
estate shall be kept together to be distributed equally among
certain legatees as they become of age, and thereafter the
executrix shall hold, manage and control the property as trus-
tee for the sole and separate use of the legatees during their
natural lives; and, the legatees having arrived at age, the
executrix has filed no inventory of the estate, made no dis-
tribution, taken no steps to make a settlement, nor made any
allowance to the legatees for the use of the property, they may
come into equity to have a distribution, and their shares of
the estate ascertained and set apart, and managed and dis-
ADMINISTRATION OF ESTATE-Continued.
posed of according to the provisions of the will. Ib. 399.
17. Surviving partner; who may bring to account; when proper party
to bill for settlement of deceased partner's estate. The per-
sonal representative of a deceased partner alone can main-
tain a bill against the surviving partner for a settlement of
the partnership; but when the surviving partner is one of the
distributees in the estate of the deceased partner. he may
be joined as respondent in a bill by other distributees against
the executrix for a settlement of the estate, and an accounting
be had of the partnership affairs, as well as of the other funds
of the estate received by the surviving partner, that the inter-
est of the estate in the partnership and funds so retained by
him, may be considered and decreed as an advance by the
executrix on his distributive interest; and, if in excess of his
distributive interest, the other distributees may look to their
right, if any, to charge the executrix therewith as for a de-
vastavit. Ib. 399.
V.-SUITS BY AND AGAINST ADMINISTRATOR.-LIMITATION.
18. Six months' exemption of personal representative from suit, not
applicable to suit to cancel fraudulent conveyance by decedent.
The statute (Code of 1896, §331) prohibiting the commence-
ment of suits against executors and administrators, as such,
until six months after the grant of letters, does not apply to
suits instituted by creditors to reach and subject property
fraudulently conveyed by decedent in his lifetime. Such con-
veyances are valid against the grantor, and the property in
no sense can become assets of the estate. Freeman v. Pullen,
235.
19. Limitation of actions; exception in favor of personal representa-
tive. In computing the time within which suits may be
brought by a personal representative to enforce an award in
favor of his intestate, the time between the death of the intes-
tate and the grant of letters of administration, not exceeding
six months, is excluded. (Code of 1896, §2815.) Brown v.
Mize, 10.
1. Principal and agent; contract in name of principal.
If an agent,
in the execution of a promissory note, discloses his principal,
makes it appear on the face of the paper that it is the contract
of the principal, and sign it as agent, the principal is bound,
the undertaking being within the agency, and the agent is not.
Richmond Locomotive & Machine Works v. Moragne, 80.
2. Contract signed by agent not disclosing principal.-If a principal
is not disclosed on the face of the paper, and the party sign-
ing describes himself as agent, trustee, or the like, without
more, it is the obligation alone of the party whose name is set
to the paper, the superadded word or words being mere de-
scriptio personae, to be disregarded as surplusage; and evi-
dence cannot be received to show that he was in fact the agent
or trustee, or the like, of an undisclosed principal, cestui que
trust, or the like, and that the obligation was that of such
other person. Ib. 80.
3. When both principal and agent are shown.-If the paper discloses
the names of two parties, either of whom may be the obligor,
and it is doubtful from the whole instrument which of the two
is intended to be bound, and the signer discribes himself as
agent, or as acting in other representative capacity, parol evi-
dence is admissible to show that it is the obligation of the
party named in, but not signing the paper. Ib. 80.
4. Person dealing with agent within scope of his authority, not lia-
ble for his defaults.-The lender of money is authorized to
pay it to the person or agent authorized by the borrower to
receive it, and having done so, the lender's responsibility
ceases, and a loss of the money, caused by the absconding of
the agent cannot be visited on the lender. Land Mortgage
Co. v. Preston, 290.
5. Lender responsible for act of his agent in paying over money.
Where the lender had money deposited with its broker, who
acted as agent of the borrower in making the application for
the loan, and after the approval and acceptance of the loan
the lender authorized such broker to pay the money
over to the borrower out of the money deposited for that pur-
pose, the broker was the agent of the lender in paying over
the money, and the lender is responsible for the act of the
agent in paying over the money to one not authorized to re-
ceive it, and who failed to deliver it to the borrower. Ib. 290.
6. Acts of agent within scope of his employment. A charge that
defendant cannot be held liable for the wrongful act of his
agent, if done "not in the interest,' "nor in the prosecution
of the business of the defendant," is erroneous and properly
refused; such expressions are not equivalent to saying "not
acting within the scope of his employment or duties." South-
ern Railway Co. v. Wildman, 365.
7. Scope of authority to eject trespassers.-An employe who is
given authority to eject trespassers riding on a train is
charged with the duty of ascertaining who are trespassers,
and acts within the scope of his authority when he ejects any
person from the train, whether a trespasser or not. Ib. 565.
8. Employer's liability for willful acts of an agent.-The employer
is liable for the willful, tortious acts of his servants, done
within the scope and range of their employment, although the
particular act was not authorized. Ib. 565.
9. Agent as attesting witness.-An agent or attorney who represents
the payee in the execution and assignment of a promissory
note, is a competent attesting witness thereto. Sowell v. Bank
of Brewton, 92.
10. Demand by agent.-A demand on a debtor for the possession of
real estate sold under execution, may be made by the pur-
chaser, or his agent. Farley v. Nagle 622.
1. Amendment of attachment proceedings on appear. The affidavit
and writ of attachment issued by a justice of the peace under
the general attachment laws and directed against the estate
of the defendant generally, may, on appeal, be amended so as
to enforce the landlord's lien for advances on the crop of the
tenant. Sloan v. Hudson, 27.
2. When the demand is ex contractu; departure.—When the affidavit
for an attachment before a justice of the peace avers that de-
fendant is justly indebted to the plaintiff in the sum named
after allowing all just offsets and demands, the action is
ex contractu; and a complaint ex delicto filed on appeal to the
circuit court, is a fatal departure. James v. Vicors, 32.
3. Change of party plaintiff.-A suit brought in the name of A B
"Agent for C D" is the suit of A B, and not of C D; an amend-
ment by which the action would stand in the name of C D as
plaintiff would work an entire change of party plaintiff, and is
not allowable. This rule applies to cases appealed from a jus-
tice court. Hallmark v. Hopper, 78.
4. Parties not changed by appeal bond.-The fact that the appeal
bond recites that C D is plaintiff, does not warrant the prose-
cution of the suit on appeal in the name of C D as plaintiff,
instead of A B, the real plaintiff. Ib. 78.
5. Amendment of affidavit; departure.-The affidavit for attachment
to enforce a landlord's lien, averring in general terms that
the tenant "is justly indebted" to the landlord "for rent and
advances" in the sum named, may be amended by showing
an amount due as the reasonable value of the landlord's
share in the crop for rents, and another sum due for ad-
vances, as defined in the statute. Such amendment is not
subject to objection on the ground of departure. Ragsdale v.
Kinney, 454.
6. Extending time for answer; amendment.-The court may extend
the time for the garnishee to answer, and his answer filed at
any time before judgment for want of answer is held to be
within time; the garnishèe may amend his answer, and it
would seem that this may be done at a subsequent term.
Roman v. Baldwin, 257.
7. Misnomer in process amendable; judgment not void.-Where, in
the notice or summons to a tax-payer to appear and show
cause against an increased valuation of its property for tax-
ation, and the return of service, the name of defendant is
given as "Howard-Harrison Pipe Works:" instead of "How-
ard-Harrison Iron Company," its true name, the summons or
notice, and also the return, are amendable, and amendable
process is not void, but will support a judgment. Ex parte
Howard-Harrison Iron Company, 484.
8. Misnomer in judgment entry.-The misnomer of defendant in the
judgment entry does not render it void, when the record fur-
nishes data for its amendment nunc pro tunc, so as to show
its rendition against defendant in its true name. Ib. 484.
9. Amendment; when too late.-An offer to amend a complaint after
the jury have retired and agreed upon, but not returned their
verdict, comes too late. It should be made before the cause
is finally submitted to the jury. Abbott v. City of Mobile, 595.
10. Amendment nunc pro tunc.-A judgment giving plaintiff costs to
the amount of damages recovered, and taxing him with the
residue, if erroneous, cannot be amended nunc pro tunc at a
subsequent term. Herzberg Bros. v. Hollis, 496.
1. Register's docket; not a record.-Notes upon the register's docket
kept under Code of 1896, §657, are no part of the record in a
cause, but memoranda or bench notes from which the record
is made up, and cannot be considered on appeal in the ab-
sence of a decree or minute entry. Ashurst v. Ashursi, 219.
2. Record must show day set for trial of capital case. The provision
of law which requires the court to set a day for the trial of a
defendant who may be punished capitally, is both mandatory
and judicial, and the record on appeal must affirmatively show
that the provision has been complied with. Bowen v. State, 7.
3. Pleading; when proper plea presumed on appeal.- Where neither
the record proper, nor the judgment entry, show upon what
issue the cause was tried, but the bill of exceptions recites
that a special plea was filed, and shows that the matters urged
by both parties and considered by the court, upon which the
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