
    WEEKS vs. LOVE, Adm’r.
    1. An administrator who has paid money through mistake, to the administrator de bonis non who succeeds him,, cannot recover it in as-sumpsit from a successive administrator de bonis non.
    
    ERROR, to the Circuit Court of Pike county. Tried before the Hon. Robert Dougherty.
    Sayre, for the plaintiff in error:
    1. When money is paid under a mistake of fact or false representation, it may be recovered back.^ — Martin v. Morgan, 5 Eng. Com. Law, Rep. 87.
    2. Money paid under a mutual mistake of facts, there being no fraud, may be recovered back. — 1 Sup. U.. S. Dig. 192.
    3. When an administrator of an insolvent estate has overpaid a debt, he may recover it back in assumpsit. — lb.
    4. And it maybe recovered back from, the administrator de bonis non, when passed to the estate as assets. — Houston v. Fra-zer, 8 Ala. 81; Sellers v. Smith, 11 Ala. 264.
    Buford, for the defendant:
    1. The first three propositions above are admitted; the fourth is not sustained by the cases referred to, but they go rather to show that tbe action should have been against Love, in bis individual, and not in bis representative capacity; or rather should have been against John & Mary McBeth, who received tbe money.
    2. It does not appear from tbe bill of exceptions, that tbe overplus paid by Weeks to McBeth was turned over to defendant with tbe assets; and must be intended to be still in Me-Beth’s bands.
    3. In Williamson v. Howell, et al. 4 Ala. 693,-tbe court held that even tbe surety of the administrator bad not tke-right to "have bis principal’s mistake (in a settlement of tbe estate) corrected in the absence of fraud; so here, if the mistake was in tbe settlement (and as to that, tbe bill of exceptions is silent) in tbe absence of fraud it cannot be corrected. But if tbe mistake (as perhaps was the case) consisted in paying over more than was found to be due them, it is not assets, but it is in tbe hands-of John & Mary McBeth, and. they are individually liable.
    4. It does not'appear-from'the bill of exceptions, that tbe overplus paid by plaintiff ever was applied either by McBeth or this defendant to tbe use of tbe estate; if tbe estate never received tbe money, tbe estate is not liable.
   CHILTON, J.

This was an action brought by tbe plaintiff in error against tbe defendant, as administrator of tbe estate of Walter McBeth, to recover money, which tbe plaintiff, as administrator in chief of tbe same estate, had paid by mistake to John C. & Mary McBeth, who succeeded him in the administration. It appeared that John C. & Mary bad quit tbe administration, and bad turned over the assets of tbe estate to tbe defendant, who was administrator de bonis non, by virtue of bis office, as sheriff of the county. Tbe bill of exceptions does not state that tbe money thus paid by tbe plaintiff through mistake to tbe intervening representatives, was treated by them as assets, or paid over by them to tbe defendant, who succeeded them ; but only shows that tbe assets of the estate passed into tbe defendant’s bands. Tbe court charged tbe jury, that upon this proof tbe plaintiff could not recover.

In our opinion, this charge was correct; for it is very clear that the money overpaid through mistake was not an asset of tbe estate, and that tbe estate could not be made chargeable on account of its receipt by tbe administrator de bonis non, but the party who has it in possession has money which, ex aequo et bono, belongs to the party, who, through mistake, has paid it, and is liable, not as administrator, but in his individual capacity, to refund it to the plaintiff. The cases of Houston v. Frazer, 8 Ala. Rep. 81; and Sellers v. Smith, 11 ib. 264; furnish a sufficient guide as to the manner in which a recovery may be had. It is very certain, that if the defendant has only received the assets proper belonging to the estate (and the bill of exceptions certifies to us, that he has only received such) he cannot be charged by-reason of their receipt for moneys, which a previous administrator of the same estate has. improperly received, and which do not belong to the estate. It is too well settled to require the citation of authority, that an administrator cannot by any act of his create a right of action against the estate he represents, however he may subject himself to personal liability. If he enter into a contract, or give' a note,- as administrator, the estate is not bound, but himself individually, upon such contract or promise.

Let the judgment be affirmed.  