Lightfoot v. Doe, on the Demise of the Heirs of Lewis , 1 Ala. 475 ( 1840 )

GOLDTHWAITE, J.

— 1. The proceedings had in the Orphans’ court of Greene county, under which the defendant in this ejectment suit, attempted to set upan outstanding title, were instituted under the provisions of an act, passed in 1822, entitled “ an act to authorize administrators to sell lands belonging to the estates of their intestates, to which a complete title has not been obtained.”^* (Aikin’s Dig. 180, 181.) The decision in Wyman v. Campbell’s heirs, (6 Porter 220,) is based on the construction of the proviso, of the act of 1820, (Aikin’s Dig. 155,) but the principle of that case applies equally to all the enactments, by which the Orphans’ court is invested with authority to direct a sale of a decedent’s real estate; the consequence of such a sale must always be, to divest the heirs or devisees of the title. The principle then established was, that proceedings to subject the real estate of a decedent to sale, were not to be considered as the execution of a mere power, and therefore, subject to objection on account of irregularities in its exercise; but as the judgment of a court of competent jurisdiction, whenever it appears from the record of the proceedings that the events have happened, or the acts have been done, by which a jurisdiction over the subject matter has been acquired. From this was deduced another principle equally as important: that irregularities, or even actual errors, in the proceedings of such a court, cannot be examined in a collateral proceeding, but only by writ of error or appeal, or by some other mode of proceeding, acting directly and immediately on the decree.

To bring this case within the influence of the decision of Wyman v. Campbell’s heirs, it is apparent that the jurisdiction of the Orphans’ court should have attached to the tract of land which is the subject of controversy, and that there should have been a final decree. That the jurisdiction of the Orphans’ court, attached to the land in question, is not disputed, for the petition shews, that the personal estate was insufficient to pay the debts of the decedept; but it is insisted that no final decree was made within the terms of the act of 1822; and consequently, that if the commissioners appointed to sell, had in fact conveyed the land, their conveyance would have passed no title.

The act of 1822, authorizes the administrator of any deceased intestate, or the executor of any deceased testator, who has not power by the will of the testator to sell real estate, for the purpose of paying debts, or to make a more equal distribution among the heirs, devisees or legatees, to file a petition setting forth, that the estate of his testator or intestate is not sufficient for the payment of the just debts of such testator or intestate, or that the estate cannot be equally, fairly, or beneficially divided, &c-. On the filing of this petition citations are to be issued, and certain directions are given, as to the manner in which the allegations of the petition shall be established in specified cases. When a sale is ordered by the court, commissioners are to be appointed in the order or decree, with directions to sell the estate either for money or on credit, as may be most just and equitable, and to report to the court, at the time limited in the order or decree. The petitioner is not to receive the money or bonds returned by the commissioners, until he shall give bond to account for the same, &c. On the coming in of the report of the commissioners, the court is to render a final decree in the cause, and if the terms of the sale have been complied with, by the purchaser of the estate, the commissioners are to be directed by such final decree to convey the estate to the purchaser.

It will be seen on examination of the statutes of 1820, (before cited,) and 1818, (Aikin’s Dig. 154) that neither of them directs any proceedings by the Orphans’ court subsequent to the decree for the sale. In this important particular they differ entirely from the act of 1822. The consequence of this difference is, that proceedings under the first statutes are concluded with the decree of sale, which is the final decree; but under the act of 1822, the order of sale is merely interlocutory, and the final decree in the cause is not pronounced until the coming in of the report of the commissioners. When the proceedings under the act of 1818$ or of 1S20, have reached the decree of sale, the action of the Orphans* court is entirely exhausted, and a writ of error of appeal would lie; but under that of 1822, the court would retain the entire jurisdiction of the cause, until the further and final decree required by the terms of the statute; and until that decree was passed the cause could not be removed to an appellate tribunal. For these reasons, we arrive at the conclusion that no final decree operating on the land in controversy, was shown in evidence in the circuit court.

2. We may remark, that we are not prepared to decide that a final decree, under the act of 1822, could be impeached collaterally, even if no report was made by the commissioners of the sale, &c. for it seems this inquiry would be as entirely within the judgment of the Orphans’ court, as any of the previous matters of citation or publication, which cannot be inquired into, according to the principles settled in Wyman v. Campbell’s heirs.

It follows from what has already been said, that there is no substantial error in the charge of the circuit court; for notwithstanding it assumes the report of the commissioners to be as necessary as a final decree, yet as the latter was wanting, the defence could not be made out, and therefore, the error of considering the report as essential, did not prejudice the defendant.

3. There is likewise no error in the refusal of the circuit court to give the instructions asked by the defendant. The institution of proceedings to subject the real estate of a decedent to sale, through the medium of the powers intrusted with the Orphans’ court, does not affect (he title; of the heirs or devisees in the least degree, until a conveyance has been made to a purchaser, under the decree of sale. Until that period, the title remains where the law, or the will of the decedent has east it. These proceedings, it is true, have been compared to those had in the Admiralty and Exchequer courts in rem, yet if'is only as to their effect in divesting the title from one, and vesting it in another, by an authorized-sale, that the comparison holds; The Orphans* court, unlike the courts of Admiralty and Exchequer, never obtains through its officers the actual custody of the property, on which its jurisdiction attaches; nor can we ascertain that it has ever been supposed that tlie title to lands sought to be subjected to sale, is considered as in a state of abeyance. The argument is certainly ingenious, but rests for its support on principles, which, if applicable at all, are only so as to personal estate; and on rules which have never been applied to courts proceeding, according to the course of the common law.

The judgment of the circuit court is affirmed.

* The title of this act seems entirely foreign to its subject matter. This may be accounted for, from the fact that our titles in 1822, were mostly incomplete; or the bill, when introduced, may have been limited to titles of that description, and after-wards may have been amended so as to include ail lands, whether held by complete titles or otherwise. G.