Crimm's Adm'r v. Townsend , 9 Ala. 403 ( 1846 )

COLLIER, C. J.

The statute under which this proceed-' ing was had, enacts, that “where any person owning lands or tenements, shall sell the same, and enter into bond, or obligation to make titles thereto, and shall depart this life without having made titles, in that case, the person to whom such bond or obligation was given, his executors or administrators may petition the Orphans’ Court of the county, where probate of the will of such deceased person was taken, or letters of administration granted, to compel the executors or administrators to make title agreeably to the bond, or obligation, given by the decedent: and it shall be the duty of.such court to cause their clerk, or register, to cause notice of such petition to be published in some newspaper in this State, once a month for at least three months, when the court may, if they find that the said contract was fairly made, order the executor or administrator, to make titles as such, to the lands or tenements, sold by their testator or intestate; and any executor or administrator refusing to comply with such order, may by such court be imprisoned for the contempt, until they will comply with the order of such court,” &c. [Clay’s Dig. 157, § 38.]

The jurisdiction conferred upon the Orphans’ Court by this enactment, is of a special and limited nature, and the course of procedure prescribed, not conformable to the practice ordinarily pursued, either at law or in Chancery. To entitle the vendee of real estate, who holds a bond for title, to avail himself of its provisions, he should show by his petition such a state of facts as indicate that he comes within the catégory intended to be provided for. This principle has been so often asserted in respect to special and extraordinary jurisdictions, that it cannot be necessary to support it by authority.

Without stopping to scan with particularity the petition in the case at bar, we think it obviously defective in not alledging, that the administrator of Peter Crimm, deceased, derived his authority by appointment from the Orphans’ Court of Pickens. The statute is too explicit in its requirement to admit of controversy, that the personal representatives of a decedent must have received his letters testamentary, or of administration, from the court that is called on to decree the execution of titles. This conclusion is the clear result of what was said in Simpson v. Simpson, Minor’s R. 33; Samuels v. Findlay, 7 Ala. R. 635.

The judgment of the Orphans’ Court is consequently reversed.