Duval's Heirs v. P. & M. Bank , 10 Ala. 636 ( 1846 )

COLLIER, C. J.

The action of ejectment, to which the pleadings refer, was brought by the lessee of the complainants against McLoskey, and involved to a great extent, the merits of the present controversy. [1 Ala. Rep. N. S. 708.] That cause was removed to this court by writ of error, and by the opinion here pronounced it was decided that the jurisdiction of the county court, under the first section of the act of 1822 attaches as soon as the court recognizes the petition of the administratrix ; and its decree cannot be collaterally impeached (if the jurisdiction is shown,) by the omission to designate the heirs by name In the petition, or elsewhere in the record ; or by the direction of the citation to the guardian instead of the heirs. Further, though the statute referred to requires the commissioners appointed to sell the lands of an intestate, to make a report to the court at the time designated in its order or decree, yet the requisition must be regarded as directory; and if the commissioners fail to make their report at the appointed time, it is competent for the court to take measures to compel them to make it, and upon its being made, to confirm it by a final decree. It was said that the record of a proceeding in the county court, at the instance of an administrator, to obtain a decree for the sale of the lands of an intestate, need not show that the cause was continued from term to term, up to its final disposition — its continuance will be intended if the reverse does not appear. And though it may not appear in totidem verbis from the decree of a county court, that it was rendered at a regular or adjourned term, if the contrary does not appear, it shall.be taken to have been rendered in conformity to the statute. Also, that the county court may refuse to confirm the report of commissioners appointed under the act of 1822, to sell the lands of an intestate estate, but it is not competent for that court seven months after the confirmation of the report, to annul the final decree and- order a resale. And although the county court cannot decree the sale of the lands on which mortgages exist, and provide for their payment, from the proceeds, yet it is asked whether a sale of the mortgagor’s interest under such a decree, will not confer upon the purchaser the right to redeem.

In Perkins’ ex’r v. Winter’s adm’x, 7 Ala. Rep. 855, the point was directly made, whether the statutes which provide for the sale of the real estate of deceased persons, do not authorize the orphans’ court to take jurisdiction of the lands of a decedent, which are incumbered by a mortgage, or other security. We there said that, “A mortgagor in possession, has not only the equity of redemption, but he has a legal interest which may be sold under execution, and conceding that the orphans’ court has no equitable jurisdiction, yet the statute cannot, by construction, be limited to cases in which the decedent had an unincumbered legal title. It is upon the real estate that, that court is authorized to act, without reference to the completeness of the title. A sale under its decree, places the purchaser in the condition of the heirs of the deceased, and any remedy which they might have adopted in order to disincumber the land is open for him. Perhaps his situation would be more favorable than their’s, where he can be brought, within the influence of the rules applicable to a bona fide purchaser without notice.” To the same effect is Evans’ adm’r v. Matthews, 8 Ala. Rep. 99. See also, Wyman, et al. v. Campbell, et al. 6 Porter’s Rep. 219.

It has been suggested at the bar, that these decisions are in conflict with the act of 1820, “ concerning executions and sales by sheriffs and for other purposes.” [Clay’s Dig. 350, § 31; Id. 216, § 76.] That act provides, that “no other than the legal title to land, or other real estate, shall henceforth be sold and conveyed by virtue of any execution.” Further, the equitable title, or claim to land, or other real estate shall hereafter be liable to the payment of debts by suit in chancery, and not otherwise, &c. Under the influence of this enactment, we have held that a purchaser under execution, where the defendant had only an equitable title, acquires nothing by his purchase; that in such case the title can only be made available in satisfaction of the judgment, by suit in equity; and the law is the same though the defendant in execution was himself in possession. [Doe ex dem Davis v. McKinney, 5 Ala. Rep. 719; Land v. Hopkins, 7 Ala. Rep. 115.] Although the latter provision of the act cited, is in general terms, and is perhaps sufficiently expansive, if literally interpreted to embrace sales of land by executors and administrators, under the sanction of the orphans’ court, yet we apprehend the title of the act, its obvious scope and design, would not justify its application to such a case. But if it could be supposed to have been applicable, its operation would be limited by the subsequent enactment of 1822, which we .have seen invests the orphans’ court with jurisdiction upon the petition of an administrator or executor, to direct a sale of the real estate without reference to the character of the title, for the purpose of paying debts, or making more equal distribution among the heirs, &c. [Clay’s Dig. 224, § 16-] It is then no objection to the jurisdiction of the orphans’ court, that the title to the estate upon which it acted was incumbered with a mortgage, and that the assignee of the mortgagee was in possession.

In Wyman, et al. v. Campbell, et al. 6 Por. R. 219, it was decided that proceedings in the orphans’ court, with a view to the sale of the realty, are in rem against the estate of the decedent, and that jurisdiction attaches quoad the thing, where the petition is regularly filed, and recognized by the action of the court, though the party in interest may not be notified of the pendency of the proceeding; and that a decree of the orphans’ court is not void, or collaterally impeachable, although the proceeding may discover errors, for which an appellate court, upon a direct application, would reverse. To the same efiect is Perkins’ Ex’r v. Winter’s Adm’rx 7 Ala. Rep. 855; Doe ex dem Duval’s Heirs v. McLoskey, 1 Ala. Rep. N. S. 708. In the case before us, the jurisdiction of the orphans’ court attached by the recognition of the petition, the appointment of a guardian ad litem, for the infant heirs of the intestate, and ordering citations to issue, &c. Whether these proceedings were regular, is now an immaterial inquiry; for the question is not whether the order of sale was voidable, and could have been reversed on errer, but was it void? We have seen that the jurisdiction was defensible, and consequently it does not come within the latter category. 'This conclusion is the clear result of the cases cited, and furnishes an answer to all the objections made to the proceedings of the orphans’ court, previous to the action of the commissioners under its decree.

In respect to the report of the commissioners, in which McLoskey is stated to have been the purchaser of the property in controversy for $5,000, it does not appear from the record before us, that it was ever confirmed. When the case reported in 1 Ala. Rep. 708, was here, we supposed that there was a regular confirmation of this report. We have not looked into the record, which was then before us, but think it probable it does not sustain the assumption, and that the mistake occurred by supposing that the sale of some other portion of the real estate of the intestate in respect to which the orphans’ court acted, embraced the premises now sought to be recovered. But however this may be, the mistake had no influence in inducing the conclusion we then attained, and certainly cannot be followed. We must then consider the effect of the order, which directed the second sale, and the consequent proceedings. In Doe ex dem Duval’s Heirs v. McLoskey, supra, we said, “ a court from which an execution issues, may set aside a sale made under it, [Mobile Cotton Press, &c. v. Moore and Magee, 6 Porter’s Rep. 679,] on the ground that courts of judicature possess a controlling power over the acts of their officers, and their process. But where a judgment or decree has been perfected, and the term of the court closed, it is not allowable to vacate it on motion.” The order of sale and final decree by the orphans’ court is assimilated to a decree of foreclosure and sale rendered in chancery, which requires the master to make report, &c. In either case, if the report is confirmed, and the necessary evidence of title, directed to be furnished to the purchaser, it is supposed it would not be competent to set aside the final decree at a subsequent term. It is not said in so many words, that the whole matter is in fieri, imtil it is definitely acted on by the court, but it is clearly intimated, and there can be no doubt that such is the law.

The failure of the orphans’ court to confirm the report, and ordering a re-sale, had the effect to annul what had been previously done by the commissioners, and to release McLoskey from his bid, quite as much as if it had been so declared in totidem verbis. The application to set aside the sale, was equivalent to an exception to it, and when an order was made which presupposed the sale to be invalid, by directing the commissioners to again offer the property, the exception was sustained.

Conceding, as it has been said, that the record shows Mc-Loskey moved to set aside all the sales in which he was reported as the purchaser, and afterwards received a conveyance from the commissioners, for part of the property purchased by him, and it does not follow that his motion was necessarily waived in toto. It may be that his exception to the report was made in too general terms; that as to a part of the land, it could not be supported, and that conscious of this, or perhaps influenced by other considerations, he was willing that the sales should thus far be approved. However this may be, we cannot think that the acceptance of a conveyance for a part, amounted to a ratification by McLoskey of all his purchases, and was a tacit withdrawal of his motion. There is nothing of which the conclusion can be predicated, that he intended such an effect. It cannot then be assumed that the act was so potent as to divest the jurisdiction of the orphans’ court, and make its subsequent proceedings coram nonjudice, and of consequence void. Even if the subsequent action of the orphans’ court was irregular, it was at most erroneous ; and this we have seen, does not so vitally affect the order for a second sale, as to make the purchase ineffectual.

We will not stop to inquire whether the depositions taken at complainant’s instance were rightly suppressed; for the facts proved, fall short of establishing either a trust or a fraud. Certainly there is nothing to implicate the fairness of Mc-Loskey’s purchase ; the premises were publicly sold, a competition of bidders invited, and the highest price offered by Elliott, who represented him.

The evidence which it- is insisted shows a trust, are letters written by McLoskey to Mrs. Duval, in 1828, and subsequently, during her sojourn in Cuba, whither she had been induced by him to go. These letters were doubtless written in the ¿confidence of friendship and affection; among other things he speaks of real estate in Mobile as her proyerty, or the children’s, or intended for them, and as being likely to increase in value, informs her of improvements thereon, either made, in progress, or contemplated. But there is not a scintilla of evidence that Mrs. D., or any one else for the complainants’ benefit, ever contributed any amount to refund to McLoskey what he had paid to the Caros, to Hunt, or upon his purchase under the decree of the orphans’ court. There is then no pretence of a resulting trust in favor of the intestate’s estate, or his heirs; and the loose and unexplained remarks contained in letters, written under circumstances in which exactness of expression was not observed, cannot furnish the basis of a decree for a specific performance. Such evidence might serve to turn the scale in favor of the complainants, if there was an equilibrium of proof upon the question whether Mc-Loskey, was a trustee, or whether he had entered into a contract by which the complainants were entitled to all or a part of the premises in question. But in the absence of such testimony, and in defiance of the answer, denying that the complainants have any rights, either at law or in equity ; that Mrs. Duval, or any one else for their benefit, advanced any part of the several sums which he paid to consummate his title ; or that any thing has been since refunded to him, or that any contract has been entered into with Mrs. Duval, or any one else, by which he stipulated to convey or relinquish to her, or the complainant, the title to all, or any part of them, we think no influence can be accorded to the letters.

We have considered the case upon the hypothesis that Mc-Loskey was merely an assignee of the mortgage, and occupied the situation of a mortgagee, up to the time that he became the purchaser of the equity of redemption, under the order of the orphans’ court. A mortgagee in possession, under the provisions of the mortgage, for the purpose of collecting his debt, by the reception of the rents and profits, cannot be considered as claiming adversely to the mortgagor, so as to make a sale of the estate of the mortgagor void, upon the ground of an adversary claim. The mortgagee in such case holds under contract, and it cannot be assumed that he will refuse to relinquish the possession when his debt is paid. The want of the pedis joossessio, by the mortgagor, or his re-preservatives, cannot make the order of sale a nullity; nor is there any thing in the relation McLoskey occupied to the premises, that deprived him of the right of purchasing at the sale.

The case of Camp v. Coxe, 1 Dev. & Bat. Rep. 52, is altogether unlike the present. There the court decided, that a sale of the equity of redemption, under an execution at law, at the instance of the mortgagee, for his mortgage debt, is not sanctioned by the act of 1812, which authorizes the sale of an equity of redemption, under such process ; that although the words of the act are general, the exception arises necessarily out of the subject and spirit of the enactment. Whether the act would justify a sale by the mortgagee for any other debt is put as a quere. But it is not intimated that the mortgagee may not purchase at a sale made under an execution, at the suit of another creditor, and we know of no inhibition which would restrain the mortgagee from purchasing the equity of redemption at such a sale. In the present case', the estate of the mortgagor was decreed to be sold, at the instance of the administratrix, to pay the debts of the intestate generally, and there is nothing in McLoskey’s relation to the estate, or in the contract between the mortgagor and mortgagees, which would forbid him from becoming the purchaser.-McLoskey then united the titles of the mortgagor and mortgagees, and in respect to them and all claiming through them-, his title was perfect. His co-defendants are derivative purchasers, through him, and occupy a situation at least as favorable as he did.

This view is decisive of the case, and relieves us from the necessity of considering the other questions presented by the record, or discussed at the bar. The consequence is, that the decree is affirmed.