Heirs of Bishop v. Hampton , 15 Ala. 761 ( 1849 )

DARGAN, J.

As the plaintiffs showed, that their ancestor died seized of the lands sought to be recovered it be came necessary for the defendant to show, that they had been divested of their title. For this purpose, he introduced a transcript of proceedings, had in the orphans’ court of St. Clair, from which it appears that Joel Chandler, in the year 1835, was appointed administrator of the estate of Harris G. Bishop deceased, who was the father of the plaintiffs, and from whom they derived title. It also appeared, that on the 11th of March 1836, the following order was made : “ This day came into court, Joel Chandler, administrator of Harris Bishop, deceased, and makes report, that the estate is entirely solvent, and that it would be of infinite benefit to the heirs of said estate, to sell without delay, the real estate belonging to said estate. It is, therefore, ordered that said petition be received, and the.order of sale made.” At the same time, publication was ordered to be made, in a newspaper, published in Huntsville, requiring the legatees, and all persons interested, to appear before the court, on the first Monday in May next, and show cause why said order should not be granted. On the 24th of July 1836, another order appears, which recites, that the publication had been made, and no cause being shown why the land should not be sold, — it is therefore ordered, that the lands described in the administrator’s petition, be sold, on the first Monday in September next. The order then appoints three persons to superintend the sale, and to conduct it according to law. Nothing more appears, on the record, until July, 1847. Two of the commissioners then report, that they had sold the land on the day appointed, and that Joel Chandler became the purchaser, for the sum of seventeen hundred and ten dollars. They make also, as a part of their report, a deed executed by them of that date, to Joel Chandler, which expresses the receipt of the purchase money, by them. This report was confirmed by the orphans’ court, and the two commissioners then executed another deed to Joel Chandler, for the same land, having the same date as their report. It was shown, however, that Chandler had died before the report was made, and before the execution of the deed.

The jurisdiction of the orphans’ court, over the lands of a decedent, is derived solely from our statute, and the mode of exercising thatjurisdiction, is prescribed by statute. The question, whether the title of the heir has been defeated by a sale, under decree of the orphans’ court, always depends on the fact, whether the court decreeing the sale, had jurisdiction of the subject matter. If it had, the title of the'purchaser is not affected by mere irregularities in the proceedings : if it had not, the judgment, or decree, which is the source of the title of the purchaser, is a mere nullity, and no title can be derived from it. But in determining whether the court had jurisdiction, or not, we can look alone to the record : the facts that give the court jurisdiction, must appear on the record, or the judgment or decree pronounced, is without authority, and void. Wyman v. Campbell, 6 Porter, 219; Couch and Robinson v. Campbell, ib. 262; Duval’s Heirs v. McLoskey, 1 Ala. 710; McCartney v. Calhoun, 11 Ala. 110; Thompson v. Tolmie, 2 Peters’ 157. Applying this rule of law, to the record of the orphans’ court of St. Clair, as exhibited to us, by the transcript of its orders, and we are compelled to say, that the court had no warrant, or authority from any fact contained, or recited in the record, to decree a sale of the land.

The .act under which these proceedings appear to have been had, is in the following language: “ It shall be lawful for an administrator of any deceased intestate, or an executor of any deceased testator, who has not by will, authority to sell real estate, for the purpose of paying the debts, or to make a more equal distribution amongst the heirs, devisees, or- legatees, to file a petition in the orphans’ court of the ' county, in which letters of administration, or testamentary, have been granted, setting forth, that the personal estate is insufficient to pay the debts, or that the real estate cannot be equally, fairly, and beneficially divided between the heirs, legatees, or devisees, without a sale thereof,” &c.

If the jurisdiction of the orphans’ court, cannot be sustained under this act, there is no other, that we can look to,which would authorize the court, in decreeing the sale of the land. We find, however, that under this act, the court can only proceed to order a sale: first, when the executor, or administrator, files his petition, setting forth that the personal estate is insufficient to pay the debts; or secondly, when an equal, fair, and beneficial division amongst the heirs, or devisees, cannot be made without a sale. The one, or the other of these two facts must exist; that is, the personal estate must be insufficient to pay the debts, or it must be shown, that the division could not be equally, fully and beneficially made, without a sale, before the court can claim authority under this statute, to order the land to be sold.

The’record produced, neither shows that a sale was necessary to pay the debt, nor to make a distribution. It recites that the administrator makes report, that the estate was solvent, and that it would be of infinite benefit to the heirs, to sell the real estate. No fact, or circumstance, recited in this order, gives the court jurisdiction to order the sale. The jurisdiction of the orphans’ court, over the lands of the decedent, is not a general, but a special, or limited jurisdiction, and can only be legally exercised, whon those circumstances are shown to exist, which give the court power to act. And although, in the opinion of the administrator, it may be beneficial to the heirs, to sell the real estate, yet this gives the court no authority to order a sale, even if the judge fully concurred with him in opinion.

It is however, contended, that the testimony of the county judge should be received, to supply the defect of jurisdiction, apparent on the face of the record; he testified, that the administrator filed a written petition, in court, praying a sale, in which it was averred, that the lands could not be equally, fairly and beneficially divided, without a sale. This petition is lost, and cannot be found after the most diligent search.

We feel no hesitation in saying, that this testimony of the county judge, should not have been received to show, that the contents of the petition differed in fact, from the recitals of it, contained in the orders of the court. The orders of the orphans’ court, in reference to the sale of decedent’s land, should show the grounds on which they are made, and their recitals, showing that a petition has been filed for this purpose, and setting out the substance of the petition, is evidence of those facts. In the case of Duvals’s heirs v. McLoskey, 1 Ala. Rep. 709, we held, that a decree of the orphans’ court, ordering the land of a decedent to be sold, was not viod, because the petition Was not produced, but that the recitals in the order, that a' petition was filed, and which showed the ground on which the land was sought to be sold, was sufficient to sustain the jurisdiction of the Court, ahd the decree directing the sale.

The orders of the orphans’ Court, in this case, shows that a petition was filed: they also show, the ground set forth in the petition, for the sale of the land. In the absence of the petition they are evidence of those facts. But we are asked to allow parol proof, to give a different version, as well as a different legal effect, to the petition, than the record affords. This, we think, would be a violation of a plain principle of law; it would be to permit parol proof, to vary the effect of a record; for the best evidence of what the petition contained, is the record. The orders show, when the petition was filed, and what it contained; they were made by one whose duty it was to make them, and we cannot permit them to be contradicted by testimony, dependent on the feeble memory of man.

This view is sufficient to dispose of the case, as it now stands before us, and we are unwilling to anticipate questions, that may hereafter arise, and we deem it unnecessary at this time to examine the other questions, growing out of the assignment of errors.

Let the judgment be reversed and the cause remanded.