Jones v. Woodstock Iron Co.

95 Ala. 551

• Court: Supreme Court of Alabama
• Decided: December 15, 1891
• Status: Published

Opinion

• COLEMAN, J.

The' bill w'as filed to enjoin suits in ejectment, commenced by the heirs of James M. Jones,' to recover- certain lands which were sold under an order of the Probate Court; and also to have the legal title to the lands-sued for divested out of said heirs, and invested in complainants. . The facts sufficiently appear in the statement of the facts of the case, in the further progress of this opinion.- ■ The petition to the Probate Court of Calhoun county, in its allegations for the sale of the lands for distribution, sufficiently complied with the statute to give jurisdiction to the court.- — Code of 1886,' § 2106; Code of-1876, §§ 2449, 2450. ■ Citations to the parties. in- interest regularly issued, and a guardian.ad litem, who accepted the appointment to represent the minor heirs, appeared and represented them in the proceedings in the Probate Court to have the lands' sold for distribution. - . •

. Even though a petition bé subject to demurrer, or a judgment on the demurrer be reversible for error on appeal; yet, if the - petition sufficiently alleges all the necessary jurisdictional facts, and final judgment is rendered thereon, from which no appeal is taken, such irregularities or reversible errors can not avail when the judgment is collaterally assailed.— Whitlow v. Echols, 78 Ala. 208; Pollard v. Hamrick, 74 Ala. 337; 3 Brick. Digest, 467, §§ 182, 183, 185.

The Probate Court has jurisdiction to sell for division lands in which the decedent held only an equitable interest. Pettit v. Pettit, 32 Ala. 288; Vaughan v. Holmes, 22 Ala. 595 ; Rice v. Drennen, 75 Ala. 338; Jennings v. Jenkins, 10 Ala. 285; Duval v. McClosky, 1 Ala. 708. The statute which authorizes the Probate Court to sell land for division is as follows :. “Lands of an estate may be sold by order of the Probate Court having jurisdiction of the estate, when the same can not be equitably divided among the heirs or de-visees.” — Code, § -2105. A difficulty arises as to what constitutes “lauds of an estate,” within the meaning of the statute. The preceding section, -in -regard to the sale of lands.for the' payment of. debts, uses-the same broad term, “land.” As we have. seen, the statute includes a mere equity in lands; and in the case of Vaughan v. Holmes, 22 Ala., supra, it was held that a purchaser of lands, who died before paying .the entire purchase-money, had such inchoate interest or equity as was subject-to sale under, the statute by decree of the Probate Court.,.

"When a sale of lands for distribution has been made in pursuance of an . order of the court having jurisdiction of the question, and on proof taken as required by the statutes, and'the sale and payment of the purchase-money regularly reported to the court, and confirmed by a decree of the court, and a conveyance of the title is executed to the purchaser, in pursuance to an order of the court to that effect,no fraud being alleged, the validity of the sale and the title of the purchaser can not- be collaterally assailed by showing that the purchase-money was not paid as reported, or that the sal.e in fact was not made as directed by the court. These questions are judicially ascertained .and adjudicated by the judgment of confirmation. It makes no difference that the Probate Court is of limited jurisdiction. After it has properly acquired jurisdiction, its judgments have the same extent, and are as conclusive quoad rem and the parties properly before it, as judgments of courts of. general jurisdiction. . A purchaser at such sale is only bound to see that the court had jurisdiction.— Wyman v. Campbell, 6 Ala. 219; Whitlow v. Echols, 78 Ala. 210 ; Farley v. Dunklin, 76 Ala. 530; Kellam v. Richards, 56 Ala. 240; Stevenson v. Murray, 87 Ala. 442; Cantalou v. Whitley, 85 Ala. 248; Goodwin v. Sims, 86 Ala. 102; Morgan v. Farned, 83 Ala. 367.

These general propositions of law are subject to the qualification, that the statute which confers the power on the Probate Court to sell lands for distribution extends only to the title or estate as it descended, and not to an after-acquired, title or interest different and distinct from that which the intestate had at the time of his death. In support of this qualification of the general principle, the following authorities are cited : Johnson v. Collins, 12 Ala. 336 ; Pettit v. Pettit, 32 Ala. 288, 305; Burns v. Hamilton, 33 Ala. 213; Cothran v. McCoy, Ib. 65; Bishop v. Blair, 36 Ala. 380; McCain v. McCain, 12 Ala. 510 ; McKay v. Broad, 70 Ala. 380; Whorton v. Marange, 62 Ala. 207; Mounger v. Burks, 17 Ala. 50 ; Rice v. Drennen, 75 Ala. 338.

The citations from 36 Ala., 33 Ala., 32 Ala., and Johnson v. Collins, 12 Ala. 336, are not directly in point, tbongb often quoted to the proposition. In the case of Pettit v. Pettit, 32 Ala.; supra, the conclusion of the court rested upon the fact that the contract of the intestate for the purchase of land was void as contravening public policy, and in violation of a statute of the United States,- and this defect was apparent upon the petition to the Probate Court for the sale of the lands.'

In the case of Johnson v. Collins, 12 Ala., the conclusion of the cciurt was, that the intestate had no inheritable or devisable interest in the lands, either legal or equitable, and consequently there was nothing upon which the order of the court could operate; that under the pre-emption law, the heir, by virtue of the statute, was entitled to perfect the inchoate pre-emption right of the settler, and not the administrator of the intestate. The other case cited from 33 Ala. merely re-affirmed the same ruling.

The proposition, however, is broadly stated and declared in McCain v. McCain, 12 Ala. 510. In this case, the intestate had purchased the land, and died without mating payment of the purchase-money, and before receiving the title. His administrator paid the unpaid balance of the purchase-money, and titles were made to the heirs of the decedent. The court held the power to sell lands for distribution “is only given when the land remains in the same condition as to the title as it was at the decease of the intestate, but' has no power when the title of the ancestor has been divested and made to the heirs.”

The facts in the case of Bishop v. Blair, supra, show that Mrs. Bishop, with funds of her- husband’s estate, entered certain lands. Under a petition by her, as executrix, to the Probate Court, these lands were represented as belonging to the estate of her deceased husband, and as such were decreed to be sold for division. It was held that the court had no jurisdiction to sell the lands for distribution, and the order • of the court for this purpose was null and void. The rule has been recognized without a single departure to the present time, since it was first declared in McCain v. McCain, 12 Ala., supra. Whatever hardships may arise, it is now a rule of property too firmly fixed to be departed from, without legislation.

So far as the adult heirs are concerned, we are firmly convinced that they are estopped from asserting any claim hostile to that of the purchasers. These adult heirs, with a full knowledge of all the facts, permitted the sale of the lands to be reported to the court, and the sale confirmed by the decree of the court. They were parties to the settlement by the administrator, in which he charged himself with the proceeds of the sale of the land, and decrees were rendered against him for their proportionate share of the-purchase-money. The ■ principle is not unlike that which was applied in the case of Bell v. Craig, 52 Ala. 216, in which it was held, that although the sale of the lands was void, the settlement by the administrator and decree against'him estopped the heirs from questioning the' validity of the order under which the sale was made. See, also, Whitehead v. Jones, 56 Ala. 156; Bland v. Bowie, 53 Ala. 161; Pickens v. Yarborough, 30 Ala. 410 ; Robertson v. Bradford, 73 Ala. 118 ; Bishop v. Blair, 36 Ala. 83; Rice v. Drennen, 75 Ala. 338; Nunn v. Norris, 58 Ala. 202.

The decree of the court ordering the sale of the land was rendered in the year 1879 ; the sale made in June, 1881, reported and regularly confirmed in September, Í881; and the purchasers have been in possession ever since, have erected valuable improvements 'thereon, and their title never questioned until January, 1888, when suit in ejectment was instituted by the two minor heirs to recover the land'. It can not be tolerated in a court of equity that the adult heirs can, at this late day, repudiate the sale, and recover back the land. Their claim constitutes a cloud upon the title of the complainants, which entitles them to relief in a court of equity. Although the minor heirs, Alice and "Walter- Jones, waited several years after attaining their majority before commencing legal proceedings in ejectment to recover their interest, it does not appear from the record, or in proof, that personal knowledge of the proceedings in the Probate Court for the sale of the land, and of the final settlement by the administrator, and the decree' in their favor against him for the purchase-money, was brought home to them, or that they have ratified the settlement; or done any act which would estop them from asserting their claim. Complainants seem to have acted in good faith in their purchase, and in making improvements thereon, and the equities of the parties as to rents, or in case of partition, if such proceedings should be instituted, can be fully adjusted upon proper pleadings in a court of equity.

The answer, cross-bill and demurrers of the minor heirs • are filed jointly with the adult heirs, who are not entitled to relief. The pleadings should be amended, if desired,- so as to separate the rights and interest of the minor heirs from the adult heirs. . . .

If tbe decree of tbe court upon tbe petition of tbe administrator for tbe sale of tbe lands was not otherwise invalid, tbe amendment nunc pro iunc was properly made. Tbe petition to tbe Probate Court sought to have tbe lands sold for an equitable division. Tbe citation to the heirs so stated. Proof was taken by deposition to show that tbe lands could not be divided without a sale, and which depositions were ordered to be filed as a part of tbe record of tbe proceedings. Tbe decree itself provides that tbe petition be granted. It is perfectly evident that tbe recital in tbe judgment, that tbe lands be sold for tbe purpose of paying tbe debts, was a mere clerical mistake, capable of correction nunc pro tunc, if indeed, when considered in connection with all tbe quasi-record memoranda and tbe record proper, it did not correct itself. Tbe proceedings being in rent, as between tbe administrator and heirs, notice to tbe heirs of tbe motion to amend nunc pro tunc was not necessary. — Farley v. Dunklin, 76 Ala. 532; Goodwin v. Sims, 86 Ala. 102 ; Nabors v. Meredith, 67 Ala. 333; Whorley v. M. & C. R. R. Co., 72 Ala. 22.

Tbe record nowhere shows bow tbe rights of A. H. Jones are involved in this case, and it does nor appear upon what grounds tbe injunction was issued and made perpetual as against him.

It is insisted that tbe decree of tbe equity court is erroneous, in that it undertook to “invest tbe legal title” in tbe complainants. Tbe case of Prewitt v. Ashford, 90 Ala. 300, supports tbe contention. We would correct tbe decree in this respect, if we deemed it necessary. A deed made in pursuance of a decree of a court of equity, executed by any other person than tbe legal owner, proprio vigore would, not convey tbe legal title. Such an instrument derives its entire strength from tbe decree. It is tbe decree at last, and not tbe instrument itself, which makes it effectual to convey or invest tbe legal title. Courts of equity in this State have long pursued tbe practice of investing tbe legal title by its decrees. This practice was not only sanctioned but expressly authorized by tbe decision of tbe Supreme Court of this State. As far back as 19 Ala. 481, 490, Brewer v. Brewer, Dabg-AN, C. J. proceeding to render “such decree as the court beloiu should have rendered, ordered, adjudged and decreed, that Tbos. J. Brewer be invested with tbe legal title,” &c. This early decision has become a rule of property, and to bold otherwise now would upset a great many legal titles. We adhere to the old rule, and so far as Prewitt v. Ashford, supra, conflicts witb it, the latter is hereby qualified. Either course would be efficient to invest a legal title. That no injustice may be done to litigants who, under the influence of the decision made in the case of Prewitt v. Ashford, supra, have instituted proceedings to procure the legal title, we declare and hold that as to such cases the case of Prewitt v. Ash-ford operates as a rule of property.— Farrior v. New England Mortg. Sec. Co., 92 Ala. 176.

The decree of the City Court is affirmed, so far as it granted relief to complainants against the adult heirs of James M. Jones; and reversed so far as relief was granted against Walter Jones and Alice Jones, who were minor heirs at the time of the sale and settlement, and against A. TT. Jones.

The judgment of this court reversing the decree rendered against the minor heirs and A. H. Jones is not to be construed as dissolving the temporary injunction enjoining the prosecution of the ejectment suits, but as to such matter the question is left open for the consideration of the lower court, if the pleadings should be amended, and other proof offered, in the further progress of the cause.

One half of the costs of the appeal must be paid by the adult heirs of James M. Jones, and the other half by the appellees.

Affirmed in part, and reversed in part.