If the consolidated cause of Torrey v. Bishop and Forbes was not at issue at the Spring tei’m, 1893 of the Baldwin circuit court, that court was without authority to impose terms upon the plaintiff as a condition to a continuance, and the judgment of dismissal entered at the succeeding term for the failure of the plaintiff to comply with the terms thus imposed was erroneous. Whether the cause was then at issue turns upon the inquiry *551whether a judgment in the statutory substitute for the action of ejectment may go against an administrator, who is brought in upon the death of the original defendant, before the lapse of eighteen months from the grant letters. In the case of Alabama State Bank v. Glass, 82 Ala. 278, referring to the statutory provision that ‘ ‘No suit must be commenced against an executor or administrator, as such, until six months, and no judgment rendered against him, as such, until eighteen months after the grant of letters of administration,” this court said : “It is not, however, every suit against an executor or administrator which falls within this statutory prohibition. To fall within its provisions, it must be against the personal representative as such, By this we understand, not only that the suit must be against the representative in his representative capacity, but that it must seek to fasten or establish a liability upon or against the property of the decedent. Hence when an outside party claims adversely to the right or title of such decedent, although the personal representative asserts claim alone in his representative capacity, the suit is not strictly against him as such personal representative. The tortis his own personal tort, if the decedent had no title ; and whether sued as an individual, or in his representative capacity, the statute copied above does not bear on the case.” The soundness of this view can not be doubted when it is taken into consideration that the purpose of the statute in question was to afford the representative time and opportunity to ascertain what property belongs to the estate, to marshal it, and, among other things, tp determine whether the estate is solvent or insolvent, and that the determination, during the period of conflicting claims, of title to property which was held by the decedent and has passed into the possession of his personal representative is in direct conservation of that purpose.
The case at bar falls clearly within this principle. The decedent in his lifetime held lands to which the plaintiff’s intestate claimed title. Upon his death the possession thereof was taken by his administrator. If the decedent had no title to the land, his holding was tortious,' and the possession of the representative was likewise a tort committed by the person who is in the office of administrator ; his possession, if wrongful, is his individual tort; and so far from an adjudication to that effect being vio*552lative of the statute, its effect is to further and carry out the ends which actuated the legislature to its enactment:
The case was, therefore, at issue when the order of continuance, at plaintiff’s instance, was made upon the condition that he pay all costs of that term before the next term of the court. It was clearly within the discretion of the court to impose these terms and to dismiss the case upon the failure of the plaintiff to comply with them; and we will not disturb the exercise of that discretion.— 16th Rule of Practice, Code, p. 808; Waller v. Sultzbacher et al., 38 Ala. 318; Maund v.Loeb & Bro., 87 Ala. 374; Rhea v. Tucker, 56 Ala. 450; Dunlap v. Horton, 49 Ala. 412.
Whether the court erred in granting a’severance of the case against Bishop from the case against Forbes’ representative and heir, after those cases had been consolidated under, and upon the terms shown in, the written agreement of the parties, is not material to the decision of the case as now presented. That ruling had no bearing upon the court’s power to impose terms for the continuance moved by the plaintiff or upon its power to dismiss the case upon non-compliance with those terms, and if erroneous it was without injury to the plaintiff.
There was a motion by plaintiff to retax the costs which he was required to pay by the order of May 8, 1893, and certain facts are stated in the motion going, or intended, to show that there should be the retaxation moved for. But it will suffice to say in this connection, that there is no evidence in this record of the truth of those alleged facts, nor does it appear that any evidence to that effect was adduced in the primary court. We, of course, can not affirm on this state of case that the circuit court erred in denying that motion.
The judgment of the circuit court is affirmed.