The questions presented by the bill of exceptions in this case must be considered in some measure as res adjudicada in this court. In the case of Price v. Sim*430mons, adm’r, decided in this court at the last term, and reported in 21 Ala. 337, the court uses the following language: “There is nothing to protect Simmons from a recovery by Williams, in his action in the Circuit Court of Tallapoosa, for the money paid to him by Williams under the decree of the Orphans’ Court against Price, which was afterwards reversed.” Price was then seeking to reverse the decree of the Orphans’ Court of Benton county, because he was not allowed a credit for the money paid by Williams, the present plaintiff, on the first decree rendered in the Orphans’ Court of Benton against him, and which was afterwards reversed in this court. This court affirmed the last decree of the Orphans’ Court of Benton county against Price, on the ground that Simmons, the defendant in error, had no defence against the present plaintiff in error, to avoid the recovery by him for the money which he had paid on the first decree against Price. The question now presented is substantially the same as the one presented in that case, and but that the parties are different in this case it would amount to res adjudicata. We feel bound to regard the decision in that case as entirely decisive of this. Were it otherwise, however, and were the question now presented on the record before us for the first time, we should adopt the same conclusion.
A judgment reversed is regarded as if it had never existed, and the parties are restored to their rights as they were before it was rendered. Dupuy v. Roebuck, 7 Ala. 484; Simmons, adm’r, v. Price, adm’r, 18 ib. 405. Before the first judgment was rendered against Price, the defendant in error had no claim whatever upon Williams; nor did such claim arise, until the decree was rendered, and execution returned “no property” as to Price. Clay’s Digest, 305 § 45. It follows necessarily, then, that when the judgment, which was the very basis of the claim, was reversed, the right growing out of it to collect the money from Williams, on the return of “ no property ” as to Price, ceased to exist.
After the reversal of the first decree, then, the defendant in error held the position of a party who had possessed himself of the property of another, without even the color of right to retain it. True, he had the right when he acquired the possession, but he has since lost it, and his possession has *431become tortious; nor will the. fact that he has since obtained another decree against Price, avail him in a court of law. That decree cannot have a retrospective operation, and relate back so as to make that legal which was before illegal and tortious.
A different rule might perhaps prevail, if the claim against the plaintiff had existed anterior to the decree, and independent of it. Then the right to withhold would probably arise on principles governing setts-off, and allow the defendant in error' to retain in his hands what was, ex aequo et bono, his own. But the right to a sett-off, to be available, must be perfect at the time of suit brought, and not acquired during its pendency.
But it is insisted, that the defendant holds the position of an agent or stake-holder, and having paid over the money to the legatees, innocently, with the full belief that it belonged to the estate, and without notice that a writ of error would be sued out, therefore he. ought not to be held liable to refund. The law cited as applicable to an innocent agent or stakeholder 1vtio pays money to the party for whom he ostensibly receives it, without notice that there is any other or better claim to it, is conceded. If the facts of the present case warranted the application of the principles which govern in such eases, the position would undoubtedly be well taken. But it is conceived that those principles do not apply to the present case. The money was not received by the defendant in error as an agent merely, oh as a stake-holder, who receives money voluntarily paid; but-it was collected by him purely on the ground that he had the legal right to collect it, and that right he had, as he supposed, established by law. He proceeded upon his judgment, and forced the collection of the money from the plaintiff by execution. He did not receive the money in the right of another person, but in his own right as administrator de bonis non. He was bound to see, and doubtless, as he supposed, did see. that his proceedings were legal. In the collection of the money he stood strictly upon his legal rights, and he cannot complain that the plaintiff in error, after the judgment is reversed, stands upon his; nor can bebe said to hold the position of one paying out money without notice that there was an adverse claim to it in his hands. The fact that he collected the money forcibly by law, and alone upon *432the ground of legal right in himself, must always affect him with notice, so far as respects the rights of the plaintiff in error.
Again, it is insisted that the plaintiff in error ought not to recover, because his right is not founded in equity and good conscience; and in support of this position, we are referred to the cases of Duncan v. Ware’s Ex., 5 S. & P. 119, and Dupuy v. Roebuck, 7 Ala. 484. We do not intend to contravene these cases, or in any manner question their authority. But how does this case stand as regards equity and good conscience ? The actual debt from Price to the defendant in error has been paid by the plaintiff in error. This is admitted, and yet the defendant in error has another judgment against Price for precisely the same amount, a,nd for the same cause of action. The plaintiff in error is still, as before, his security on his bond as sheriff, and liable to respond for his defaults. He is then as liable in law to pay the last judgment, as he was the first. If the defendant did not intend to enforce that judgment, why go through the useless ceremony of recovering it ? The only way in which the parties can be placed on equal grounds, is to let the plaintiff have his judgment, by which he may defend himself against the liability created by the second judgment in the Orphans’ Court of Benton against Price. We think this is required, as well by principles of equity and good conscience, as by the rules of law.
The question is not presented on this record, as to what the position of the defendant in error would be, if the estate which he represents had been insolvent, and on such a state of facts we express no opinion. We have but to add, that the court below erred in its charges to the jury, and in refusing to give the charge prayed by the plaintiff. The latter charge we think a correct statement of the law arising upon the facts in evidence, and should have been given. 0
The non-suit in the court below is therefore set aside, and the cause remanded.
Chilton, C. J., not sitting.