[Tindal v. Drake.] under the several conveyances, either as tenants in common with her, or in remainder at her death (which is averred in the bill), and the children and heirs of some of her children, who so took, and have died. The first ground of demurrer is, that there is a misjoinder of complainants - that the children taking under the conveyances cannot join with the other complainants who take as heirs. Whether the children take in remainder, or take immediately, they take as tenants in common, and, on the death of either, his estate descends to his heirs-atlaw, and they have then the community of interest with the surviving tenants which their ancestor had. This community of interest entitles the parties to join as complainants in a bill for partition. The heirs must have been parties, either as complainants or defendants; and they could properly elect, whether they would seek partition as complainants, or remain passive, and take the place of defendants against whom it was sought. The next ground of demurrer is, that the personal representatives of the children dying are not made parties. If the object of the bill was a partition of personalty, the title to which would by law devolve on such representatives, they would be indispensable parties, unless the bill averred, as it does not, the existence of particular facts, which have been held to dispense with the necessity of tracing title through them. The subject-matter of the suit, however, is a partition of real estate. At common law, an executor or administrator is the representative of the personalty only. By virtue of his office, he had no right to the possession of the lands of the testator, or intestate. If the lands were devised, they passed to the devisees; if not devised, they descended to the heir-at-law, who alone was entitled to the possession. 1 Brick. Dig. 935, § 316. The statutes of this State confer on the personal representative authority to rent, and to obtain judicial decree for the sale of lands. These statutes are not construed as intercepting the descent, or affecting the common-law right of the heir to recover rents and profits, until the personal representative asserts the power they confer. 1 Brick. Dig. 937, § 332. So far as the bill seeks partition, and an account of rents and profits after the death of the several ancestors of the heirs who are complainants, the personal representatives are not necessary parties. If an account of the rents and profits accrued prior to the death of the ancestors is sought, the personal representative is a necessary party, unless his presence can be dispensed with by the averment of facts not found in this bill. But if these representatives are, in any aspect of the case, material parties, the bill should not have been dismissed for want of them; an opportunity should have been afforded the complain [Tindal v. Drake.] ants by an amendment to introduce them. It would be a harsh practice, which this court has often discountenanced, to dismiss a bill containing equity, because of a want of proper parties as to a part of its subject-matter. 1 Brick. Dig. 753, § 1691. The personal representative of Sarah E. Tindal could not possibly have any right or interest in this suit. The defendant Drake, by a conveyance from her in her life, had succeeded to all her estate in the lands. If such representative had been made a party defendant, he could have demurred for a misjoinder. If made a party complainant, the defendants could have demurred for like cause. The bill is not multifarious. It does not set out several distinct, unconnected matters. If the defendant Drake has, as the demurrer avers, no interest in the question of the removal of the trustee, he has an interest in the partition of the lands, and against him only is an account of rents and profits sought. To these, the most material part of the case, he is an indispensable party. The removal of the trustee is prayed, because of his failure to assert the alleged rights of the complainants. Whether the conveyance to Drake is unauthorized, and the trustee's acquiescence in it is ground for his removal, is of vital importance to Drake. The whole matter of the bill is so connected, that it would not comport with the established policy of a court of equity, to avoid a multiplicity of suits, to compel the complainants by one suit to have sought a removal of the trustee, and by another partition and an account of rents and profits, to which probably Drake would have had the right to require the trustee to be made a party, that the legal title might be bound by the decree rendered. Horton v. Sledge, 29 Ala. 478; Kennedy v. Kennedy, 2 Ala. 573. The bill was properly filed in the chancery district in which the lands are situate, and in which material defendants reside. The mere fact, that the trustee was appointed by the court of another district, does not draw to that court exclusive jurisdiction of this suit, whatever would be the rule if the trustee had been accounting to that court, and a settlement of his trust only was sought. The decree of the chancellor is reversed, and the cause remanded. [Erwin v. Hill's Administrator.] Erwin & Jones v. Hill's Administrator. Action on Promissory Note given for Price of Land sold by Administrator under Probate Decree. 1. Grant of administration during late war; action by administrator. — An administrator, appointed by a probate court of this State during the late war, cannot maintain an action in the courts of the present state government, by virtue of those letters alone; but if he sold property belonging to the estate, under orders of the probate court, taking a note payable to himself as administrator, and has not been discharged from his fiduciary responsibility, nor superseded by a subsequent appointment, he may maintain an action on it in his own name; and his subsequent appointment as administrator, pending the suit, will enable him to enforce the collection of the judgment, and at the same time protect the defendant in paying it. 2. Estoppel en pais against administrator. — An administrator who, in selling property under an order of the probate court, makes an agreement with the purchaser contrary to the terms of the decree, cannot repudiate his agreement on that account, when suing on the note given for the purchase-money. 3. Contracts payable in Confederate money; measure of recovery. - In estimating the amount which a party is legally, justly, and equitably entitled to recover (Ordinance No. 26 of convention of 1865), when suing on a note given for the price of property sold during the late war, and which, by contemporaneous agreement between the parties, might be discharged by a payment in Confederate treasurynotes, the criterion is thevalue of the property in lawful money at the time of the sale; and although it is permissible, in determining that value, to consider the relative values of Confederate money and lawful currency, yet this must not be made the standard. APPEAL from the Circuit Court of Hale. Tried before the Hon. M. J. SAFFOLD. This action was brought by Mrs. Susan B. Hill, suing as the administratrix of her deceased husband, Charles W, Hill, against George Erwin and Allen C. Jones; was founded on the defendants' promissory note for $40,386.98, dated the 10th day of February, 1863, and payable to the plaintiff, as such administratrix, on the 1st March, 1864; and was commenced on the 9th day of March, 1866. The judgment rendered on the first trial was reversed by this court, on appeal by the plaintiff, and the cause was remanded, as shown by the report of the case in 44 Ala. 661-8. The opinion then delivered in the case has been expressly overruled, at the present term of the court, in the case of Riddle v. Hill's Adm'r, ante, pp. 225-234. On the second trial, as the record now shows, the case was submitted to the court on an agreed statement of facts, which is substantially set out in the opinion of the court ; and the court charged the jury that, "on these facts, the plaintiff was entitled to recover the amount of the said note, with interest thereon, less the amount of credits indorsed thereon." This charge, to which the defendants excepted, is now assigned as error. The opinion was delivered at the June term, 1872. WM. M. BROOKS, for appellants. [Erwin v. Hill's Administrator.] A. B. PITTMAN, with R. H. SMITH, contra. B. F. SAFFOLD, J.- When this case was in this court before (Hill v. Erwin et al. 44 Ala. 661), it was held, that the sale of a decedent's land, under an order of the probate court, at the instance of the administrator, was a judicial sale; and that the term "dollars," as expressive of the consideration to be paid, meant such as would be a legal tender in the payment of debts. From these premises the court deduced the conclusion, that the purchase-money of lands of a decedent, so sold in 1863, could not be shown to have been payable in Confederate currency, by agreement between the administrator and the purchaser at the time of sale, in a suit by the administrator as such against the purchaser. The case is now returned to us under a different state of pleading, with additional facts, presenting new issues. It is agreed between the parties, that the plaintiff, Mrs. Hill, was duly appointed administratrix, in 1862, but by the court of the insurrectionary government existing in the State at that time; and that she has not had, either at the sale, or at the commencement of this suit, or at any other time, any other authority to represent the estate than was derived from that appointment. It is further agreed between them, that "the general issue, and appropriate special pleas, denying the validity of the appointment of the plaintiff as administratrix, denying that she ever was administratrix, denying the validity of the sale of the land, and of the orders of the probate court, and presenting the questions, whether said debt has been paid; and whether the defendants have the right to scale the debt on account of the agreement to take Confederate money in payment thereof; and whether the plaintiff is entitled to recover any, and what amount from the defendants; and any other appropriate pleas, which can be well pleaded, together with appropriate demurrers, replications, and issues, shall be considered as in. The court is to pronounce upon the case on the above facts, in the form of a charge to the jury, and a verdict is to be entered in accordance with such decision." The facts material to be stated are briefly these: The defendant Erwin bought the land of the intestate, in 1863, at a sale by the plaintiff as administratrix, under an order of the probate court, under an agreement with her that the purchasemoney might be paid in Confederate treasury-notes. The land was worth at the time in gold, or its equivalent, about $13,000. He agreed by promissory note to pay over $40,000, and did pay about $32,000, in the promissory notes of other persons, which were received by the administratrix and credited on his note " as so many dollars, which at that time greatly [Erwin v. Hill's Administrator.] exceeded in amount the real market value of said lands in good money." At the date of the sale, Confederate currency was exchangeable for gold, at the rate of three dollars for one of the latter. The plaintiff has sued on the note in her representative capacity, admitting the credit in proportion to the nominal amount of each. The agreement of the parties, in reference to the pleadings, seems to admit of any plea, whether in prosecution or defence, admissible in law under the facts stated. Perhaps, the parties ought to be required to make up their issues more definitely. As this case arises under peculiar circumstances, and is not likely to become a troublesome precedent in respect to pleading, we will consider it as presented. The plaintiff's administration of the intestate's estate, and the orders of the probate court respecting it, during the recent war, are not void. Griffin v. Ryland, 45 Ala. 688. But an administrator cannot maintain a suit, in the present courts, by virtue alone of an appointment made under the insurgent government then existing in the State, if the objection is made. Bibb & Falkner v. Avery, 45 Ala. 691. It would be an answer to the objection, however, if the plaintiff had a personal right to recover on a contract made with him in his representative capacity. Harbin v. Levi, 6 Ala. 399. Where an administrator has, in virtue of his administration, obtained the legal title to property of the deceased, he may sue for its recovery in his own name, although he is the legal owner in the character of trustee, unless he has by some means become divested of that character. A foreign administrator, who has reduced the personal property of the deceased there situated into possession, has this right, if the property be afterwards found in another country. Story's Conflict of Laws, § 516. In Dunham v. Grant (12 Ala. 105) is an explicit decision, that an administrator cannot sue upon a note, an asset of the estate, which he has taken payable to himself as administrator, after his removal from office, although no successor has been appointed. But C. J. COLLIER, laying stress upon the revocation of the letters, conceded that, under some circumstances, the right to maintain an action would be a conservative power. Judge ORMOND, dissenting, held that the right to sue remained notwithstanding the removal, until a successor was appointed. The circumstances of conservative power certainly exist in this case, where there is a fiduciary liability, without a removal, or the appointment of a successor. Section 2293 of the Revised Code, prescribing how a foreign administrator may maintain an action in this State, is confined to cases of appointment in another of the United States, when no letters have been granted in this State; and the required |