Bonner v. Greenlee's Heirs , 6 Ala. 411 ( 1844 )

GOLDTHWAITE, J.

1. The important question in this case is, that which involves the title by which the defendant held the land in controversy.

In Lightfoot v. Lewis’ heirs, [1 Ala. Rep. 475,] we held, that when the proceedings to subject lands of a deceased person to sale, at the suit of his executor or administrator, are under the act of 1822, [Clay’s Digest, 224, § 16 to 22,] it must appear, not only that a final decree was made upon the coming in of the report of the commissioners appointed to conduct the sale, but also, that a conveyance in pursuance of the decree, was necessary to divest the heirs at law of the title. In this case it seems, that the administrator actually conveyed the land to a purchaser, but it does not appear that he was authorised to do so by any decree of the county court, and it seems to be conceded that the proceedings to subject the land, were had under the statute before referred to. It is certain, that the memorandum indorsed upon the papers in the county court, cannot be considered a final decree, as it is presented by the bill of exceptions, and consequently there was no error in the ruling of the court.

2. It is possible that the judge of the county court appointed the administrator as a sole commissioner to sell the land, and it may be, that in his report of the sale lie sets out, that he has conveyed the land to the purchaser upon payment of the price, or upon taking his bonds for it, if such was the order; although such a course would have been erroneous under the act of 1822, we are not prepared to say that it would be so entirely void as to defeat the sale, if sustained by a final decree approving it. Whether the memorandum indorsed by the judge of the county court upon such a report, approving and ordering it to be filed among the papers of the estate, could be considered as a final decree, or afford sufficient evidence to enter one nunc pro tunc, are questions wdiich need not now be discussed.

3. The call of the defendant upon the court, to instruct the jury that the plaintiffs could not recover unless it was proved that the brothers and sisters of Samuel Greenlee were begotten in lawful wedlock, was properly refused, because they might, notwithstanding, be his heirs at law. The common law required nothing more for legitimacy, than that the child should be born in wedlock, and our statute legitimates bastard children, when their parents afterwards intermarry, and the father recognizes them.— [Clay’s-Digest, 165, § 3.] We do not presume, however, that any such objection was urged or existed in this case, but our remarks are necessary to show, that the charge ought to have been declined. The one actually given, placed the matter in its proper light before the jury, and seems entirely unexceptionable.

4. It is supposed by the defendant’s counsel, that this action cannot be maintained, because all the heirs at law of Greenlee, have not joined in the suit. It is said by Chitty, that tenants in common, must in general, sever in such actions, and in ejectment, that a joint demise would be improper; but in personal actions, as for a trespass or nuisance to their land, they may join, because, in these actions, although their estates are several, yet the damages survive to all, and it would be unreasonable, when the damages are thus entire, to bring several actions for a single frespass; a tenant in common may, however, sue separately, as in ejectment for his undivided share, or in trespass for the mesne profits. [1 Chitty’s Plead. 56.]

From this it would seem, in an action of this nature, that the action can be either joint or several, but however this may be, it is certain, that if there are parties who ought to have joined, but who have not, the objection could only be taken by plea in abatement, and the defendant cannot in actions ex delicto, give evidence of the non-joinder to defeat the action. [1 Chitty’s Plead. 56.]

5. The remaining exception to be considered is, that which questions the right to sue the defendant, inasmuch as his possession is only fiduciary, and for the benefit of others. This cannot avail him, because his possession is without title; and this action is necessarily brought against the tenant in possession, irrespective of ownership.

Our conclusion in the whole case is, that there is no error brought to our notice by the several assignments, and the judgment is, therefore, affirmed.