Taylor v. Taylor

40 So. 375, 162 Ala. 162, 1909 Ala. LEXIS 311

• Court: Supreme Court of Alabama
• Decided: June 30, 1909
• Status: Published

Opinion

MAYFIELD, J.

This was a statutory action of ejectment. Both parties claimed title through a common source, viz., William Taylor, deceased, who was also the father and common ancestor of all the parties. Plaintiff bases his claim and title on a commissioner’s deed and a sale of the lands in the probate conrt of St. Clair county, under section 3178 .et seq. of the Code of 1896 for division and distribution between the heirs of William Taylor, the joint owners of the lands. The defendants base their claim and title upon the sheriff’s sale and deed under an execution against the personal representative of Wm. Taylor, the common ancestor, which antedated the sale in the probate court. The trial was had upon an agreed statement of facts, which the reporter will set out in substance at least. Tbe trial court gave the general affirmative charge for the defendants, and refused a like charge to the plaintiff, and these two rulings are assigned as error.

Both assignments are good, and must be sustained. An execution against the personal representative of a deceased person in his personal or representative capacity cannot run against the lands of the decedent’s estate. —Speigner v. Farquhar, 82 Ala. 569, 3 South. 47; 3 Mayfield’s Digest, p. 756. The lands of an intestate, at common law and under our statutes, descend immediately to his heirs. The administrator takes no estate or interest in them; hence a judgment against him in any capacity cannot bind the lands. It has always been the policy of the law to prevent lands of a decedent from being subject to legal process issuing against personal representatives. Lands of an intestate are liable to process issuing against the heirs, because they are the owners, but not to that issuing against the personal representative, because he is not the owner, and has no interest therein, except that which the statute gives him of intercepting the possession and retaining it, if necessary, to collect rents, or. to sell to pay debts in such cases, and in such mode and proceedings, and such only, as the statute authorizes and directs, and the statutes have never authorized him or the creditors to sell it under an execution against the personal representative. If there be no necessity for. renting, or for the sale of the lands for the purpose authorized by the statutes, the personal representative, of course, cannot intercept the possession for the purposes of thus administering the land. The administrator has no authority to charge the lands for any purpose, except as given him by statute; for at common law lands could not be sold for the debts of the decedent, and under our law they can be sold for such purposes only under the conditions and in the modes prescribed by the statute. Every step the personal representative takes as to the lands is antagonistic to the rights of the heirs or devisees. — Chandler v. Wynne, 85 Ala. 309, 4 South. 653; Lee v. Downey, 68 Ala. 98. It follows, therefore, that no title passed to the defendants, appellees here, by virtue of the sheriff’s deed, based solely, as it was, upon a levy and sale under an execution against the administrator.

It is admitted as a part of the agreed statement of facts upon which the trial was had that the probate court acquired jurisdiction to sell the lands in question for division among the joint owners, the parties to this suit, if the petitioners were such joint owners, and if the jurisdiction was not defeated and destroyed by the assertion-of an adverse claim or title to the lands by the defendants who claimed under the execution sale. It is unnecessary to decide whether or not the asserted adverse claim in the probate court was sufficient to prevent the sale or further proceeding in the probate court. Under section 3176, whatever might be the merit in the adverse claim, or whatever the probate court should have done in the- premises when the claim was asserted it was not sufficient to destroy all jurisdiction theretofore acquired, nor to render all subsequent proceedings therein absolutely void, or void in a collateral attack like this. When the claim was first asserted in the probate court, it seems, that court ruled that it could proceed no further in the matter, and an appeal was taken by the petitioners to the circuit court, and that ruling of the probate court was reversed by the circuit court, after which the probate court proceeded to judgment and ordered the sale, which was made and confirmed by the court, and a deed was made by the commissioner to plaintiff, as purchaser, in accordance with the decree of the court. All parties interested in the land were properly served, and appeared as provided by law, and contested the proceedings in the probate court. No appeal was taken from the decree of the probate court ordering, or from that confirming, the sale. They stood, at the time suit was brought and at the time of trial, as apparently valid judgments or decrees of a court of competent jurisdiction; and the proceedings are certainly not void on their face, like the sheriff’s levy and sale under the execution was. No direct attack seems to have been made on the proceedings in the probate court, and they cannot be assailed in a collateral attack, like this action of ejectment. — Whitlow v. Echols, 78 Ala. 206, and cases cited.

Reversed and remanded.

Dowdell, C. J., and Simpson and Anderson, JJ., concur.