OHILTON, C. J.
-1. A portion of the testimony of the witness Mc-aling, we should be inclined to reject as illegal; while other portions of it, tending to show efforts on the part of the administrators to procure bidders, and to give publicity to the sale, were entirely proker. But it was objected to as a whole-that is, two portions of it were embraced in separate objections going to each as a whole; and as each contains some legal proof, the court properly overruled the motions to exclude, since it was not authorized to reject that which was proper, nor bound to sift the evidence so as to separate it from that which was improper. Such have been the uniform decisions of this court.
2. There was no error in excluding from the jury the orders ~f the judge of the Orphans' Court, made in the matter of other estates, and which were o~ered as evidence of what the judge of said Orphans' Court meant by the order to sell the perishable property of Wyatt's estate. Such evidence was illegal fbr two reasons: 1st, it was clearly res inter alias; and, 2d, the construction of the order was for the court, and not for the jury. This the court must do, upon an inspection of the record of the Orphans' Court. That record showed the order, the sale of the personal property after it was granted, as returned by the administrator under oath, and the judicial enrollment of the inventory of the sale, as a part of the record of said court in the matter of the proceeding in said estate. These, we held, when the case ~yas ~before us at a previous term, (see 23 Ala. 764,) showed that the order conferred authority to sell the slaves, as practically construed by the court making it and the parties acting under it.
3. The previous opinion of this ~ourt must stand as the law of this case; and as the record before us develops no proof materially changing the aspect in which it was then presented, the court below ~ery properly charged the jury, that the former decision was binding upon the primary court, [648]*648that tbe order warranted the sale of the slave in suit, and that the result of the decision upon this point was not affected by any evidence which liad been submitted.
4. The fourth charge, which is somewhat involved, but which is adroitly drawn, when clearly considered, cannot be supported. The point in that charge is, not that the administrator sold the slaves without advertising them, which should avoid the sale. That, with other supposed irregularities, had been distinctly submitted to the jury by the three charges immediately preceding the one under consideration. But the question presented by this charge was, conceding the order conferred authority to sell the slaves, and that they were sold and the return of the sale was duly made and recorded,— conceding, in other words, that everything had been actually conducted as required by law, save that the administrators did not believe the order conferred authority to sell the slaves, and consequently did not deem the sale as made under it, that this would make the purchase at such sale, by one of the administrators, fraudulent and void.
It is not pretended that this was a private sale — all the proof shows that it was public. Neither is there any evidence tending to show that the property was purchased at an under value. Nor is it attempted to show that the views said to be entertained by the administrators as to their authority to sell under the order were made known to the bidders. The contrary is inferable from the facts hypothetically stated in the charge. Now, if the sale was properly made in other respects, we do not see how the mere opinion, or mind of the personal representatives, which had not the least practical influence upon it, could in any way affect its validity. If it be supposed by the appellant’s counsel that the former opinion of this court countenances the idea of going into proof aliunde to show the meaning of the order, he mistakes that opinion.— The practical construction of the parties and of the Orphans’ Court was apparent from the record of that court. It would never do to allow the mere opinion, a mental reservation of the administrators, to invalidate a sale shown by the record to be valid, more especially after the lapse of some eighteen years, and thus to overturn titles upon which purchasers have so long reposed. The order must, as we have said, be con[649]*649strued by the court upon an inspection of the record, and thus construed, furnished, as a conclusion of law. authority for the sale which was afterwards made; and if the sale was made in accordance with law, it is wholly immaterial what the administrators thought as to the extent of their authority, or about their compliance with it. We have not considered the failure to advertise in connection with this charge, for the reason, that the court had just charged, that if such failure existed, it avoided the sale. The court was not bound to repeat the charge ; nor can wc suppose the counsel intended, after having obtained the opinion of the court in a direct specific charge; that the failure to advertise would, of itself, render the sale invalid, to obtain a charge much less favorable to his side, by requiring the jury to find several o fchor facts besides, and in addition to the want of advertisement, in order to avoid the sale. Whether the charges respecting the advertisement, the giving of bond and security, Ac., were not too favorable to appellant, is a question we need not now decide. See, however, on this subject, Lay's Ex'rs v. Lawson's Adm’r, 23 Ala. 377. Esteeming it, then, as a charge which assumes that the quo animo of the party making the sale should avoid it, although such intent had not the least practical bearing on the sale, we think the court very properly overruled it.
5. The sixth and seventh charges asserted correct propositions of law. The jury had nothing to do with the understanding of the administrators, or of the Orphans’ Court judge as to the meaning of the order of sale — -that was for the court. But the appellant has not been injured by the refusal of these charges : they amounted to nothing more than instructions to the jury, that they had nothing to do with the decision of a question of law which the court had already correctly decided against the appellant- In this aspect, their refusal was clearly for the appellant's advantage ; for, if the judge, by rejecting them, impliedly admitted the right of the jury to revise his'decision adverse to appellant on a point of law, it gave the appellant an additional chance for a verdict, of which, of course, he cannot complain.
6. The other charges (numbers eight, nine and ten) question the jurisdiction of the Orphans’ Court to make the order for [650]*650the sale of the slaves, because it does not appeal'to have been necessary.
Whether a sale was necessary, was a question for the determination of the Orphans’ Court — a question upon which its jurisdiction depended : and the rule is well settled, that where the jurisdiction of a court depends upon a fact which such court is required to ascertain and settle by its decision, as a preliminary to its jurisdiction, then the exercise of its jurisdiction implies the previous ascertainment of the preliminary jurisdictional fact, and the decision of the court as to the jurisdictional fact cannot collaterally be called in question.—Brittain v. Kinnard, 1 Brod. & Bing. 432; S. C., 5 Eng. Com. Law R. 137; 3 Phil. Ev. Cowen & Hill’s Notes, pp. 10, 16,
Free access — add to your briefcase to read the full text and ask questions with AI
OHILTON, C. J.
-1. A portion of the testimony of the witness Mc-aling, we should be inclined to reject as illegal; while other portions of it, tending to show efforts on the part of the administrators to procure bidders, and to give publicity to the sale, were entirely proker. But it was objected to as a whole-that is, two portions of it were embraced in separate objections going to each as a whole; and as each contains some legal proof, the court properly overruled the motions to exclude, since it was not authorized to reject that which was proper, nor bound to sift the evidence so as to separate it from that which was improper. Such have been the uniform decisions of this court.
2. There was no error in excluding from the jury the orders ~f the judge of the Orphans' Court, made in the matter of other estates, and which were o~ered as evidence of what the judge of said Orphans' Court meant by the order to sell the perishable property of Wyatt's estate. Such evidence was illegal fbr two reasons: 1st, it was clearly res inter alias; and, 2d, the construction of the order was for the court, and not for the jury. This the court must do, upon an inspection of the record of the Orphans' Court. That record showed the order, the sale of the personal property after it was granted, as returned by the administrator under oath, and the judicial enrollment of the inventory of the sale, as a part of the record of said court in the matter of the proceeding in said estate. These, we held, when the case ~yas ~before us at a previous term, (see 23 Ala. 764,) showed that the order conferred authority to sell the slaves, as practically construed by the court making it and the parties acting under it.
3. The previous opinion of this ~ourt must stand as the law of this case; and as the record before us develops no proof materially changing the aspect in which it was then presented, the court below ~ery properly charged the jury, that the former decision was binding upon the primary court, [648]*648that tbe order warranted the sale of the slave in suit, and that the result of the decision upon this point was not affected by any evidence which liad been submitted.
4. The fourth charge, which is somewhat involved, but which is adroitly drawn, when clearly considered, cannot be supported. The point in that charge is, not that the administrator sold the slaves without advertising them, which should avoid the sale. That, with other supposed irregularities, had been distinctly submitted to the jury by the three charges immediately preceding the one under consideration. But the question presented by this charge was, conceding the order conferred authority to sell the slaves, and that they were sold and the return of the sale was duly made and recorded,— conceding, in other words, that everything had been actually conducted as required by law, save that the administrators did not believe the order conferred authority to sell the slaves, and consequently did not deem the sale as made under it, that this would make the purchase at such sale, by one of the administrators, fraudulent and void.
It is not pretended that this was a private sale — all the proof shows that it was public. Neither is there any evidence tending to show that the property was purchased at an under value. Nor is it attempted to show that the views said to be entertained by the administrators as to their authority to sell under the order were made known to the bidders. The contrary is inferable from the facts hypothetically stated in the charge. Now, if the sale was properly made in other respects, we do not see how the mere opinion, or mind of the personal representatives, which had not the least practical influence upon it, could in any way affect its validity. If it be supposed by the appellant’s counsel that the former opinion of this court countenances the idea of going into proof aliunde to show the meaning of the order, he mistakes that opinion.— The practical construction of the parties and of the Orphans’ Court was apparent from the record of that court. It would never do to allow the mere opinion, a mental reservation of the administrators, to invalidate a sale shown by the record to be valid, more especially after the lapse of some eighteen years, and thus to overturn titles upon which purchasers have so long reposed. The order must, as we have said, be con[649]*649strued by the court upon an inspection of the record, and thus construed, furnished, as a conclusion of law. authority for the sale which was afterwards made; and if the sale was made in accordance with law, it is wholly immaterial what the administrators thought as to the extent of their authority, or about their compliance with it. We have not considered the failure to advertise in connection with this charge, for the reason, that the court had just charged, that if such failure existed, it avoided the sale. The court was not bound to repeat the charge ; nor can wc suppose the counsel intended, after having obtained the opinion of the court in a direct specific charge; that the failure to advertise would, of itself, render the sale invalid, to obtain a charge much less favorable to his side, by requiring the jury to find several o fchor facts besides, and in addition to the want of advertisement, in order to avoid the sale. Whether the charges respecting the advertisement, the giving of bond and security, Ac., were not too favorable to appellant, is a question we need not now decide. See, however, on this subject, Lay's Ex'rs v. Lawson's Adm’r, 23 Ala. 377. Esteeming it, then, as a charge which assumes that the quo animo of the party making the sale should avoid it, although such intent had not the least practical bearing on the sale, we think the court very properly overruled it.
5. The sixth and seventh charges asserted correct propositions of law. The jury had nothing to do with the understanding of the administrators, or of the Orphans’ Court judge as to the meaning of the order of sale — -that was for the court. But the appellant has not been injured by the refusal of these charges : they amounted to nothing more than instructions to the jury, that they had nothing to do with the decision of a question of law which the court had already correctly decided against the appellant- In this aspect, their refusal was clearly for the appellant's advantage ; for, if the judge, by rejecting them, impliedly admitted the right of the jury to revise his'decision adverse to appellant on a point of law, it gave the appellant an additional chance for a verdict, of which, of course, he cannot complain.
6. The other charges (numbers eight, nine and ten) question the jurisdiction of the Orphans’ Court to make the order for [650]*650the sale of the slaves, because it does not appeal'to have been necessary.
Whether a sale was necessary, was a question for the determination of the Orphans’ Court — a question upon which its jurisdiction depended : and the rule is well settled, that where the jurisdiction of a court depends upon a fact which such court is required to ascertain and settle by its decision, as a preliminary to its jurisdiction, then the exercise of its jurisdiction implies the previous ascertainment of the preliminary jurisdictional fact, and the decision of the court as to the jurisdictional fact cannot collaterally be called in question.—Brittain v. Kinnard, 1 Brod. & Bing. 432; S. C., 5 Eng. Com. Law R. 137; 3 Phil. Ev. Cowen & Hill’s Notes, pp. 10, 16, et seq.
Having decided that the order warranted the sale of the slave in question, the necessity for the order, being a preliminary question to be settled by the court, and without the ascertainment of which such order could not properly have been made, must be considered as having been made apparent to the court. This necessity might be shown even contemporaneously with the grant oí- administration. The three last charges were, therefore, properly refused.
Upon a careful examination of the record, and the points raised upon it, most of which are substantially covered by the previous decision, we can see no error prejudicial to the appellant. The judgment is consequently affirmed.