England v. McLaughlin , 35 Ala. 590 ( 1860 )

STONE, J.

In the case of Delaplaine v. Lawrence, (10 Paige, 602,) lands of a decedent had been sold by the administrator, under an order of sale granted by the surrogate for that purpose. Delaplaine was one of the purchasers. The administrator reported the sale for confirmation, and "W\ B. Lawrence, one of the heirs at law, opposing the confirmation of the sale as to certain of the lots, the surrogate set aside the sale as to those lots, and ordered a resale. Delaplaine appealed from the order setting aside his purchase; and there was a motion made to dismiss his appeal, on the ground that he, the purchaser, had not made himself a party to the proceedings. The real contest on the application to confirm, as the report of the case, we think, shows, was between the administrator and the dissatisfied heir. Tire motion to dismiss was overruled; the court remarking, “It is evident that the legislature contemplated that there might be litigation before the surrogate upon the question as to the propriety of a confirmation.”

This case is an authority to show, not only that the purchaser is a party to the order of confirmation, hut that the heirs may also become parties. If heirs may become parties to the record, we can conceive of no good reason why devisees, who are also heirs, may not.

In the present record, Samuel G. McLaughlin, the executor, reported the sale for confirmation. England, the purchaser, resisted the confirmation. “Thereupon, said Samuel G-. McLaughlin, by his attorney, and said George McLaughlin and Charles McLaughlin, by their attorneys, asked the court to confirm said report.” This is the recital of the record. In confirmation of this, the notice of appeal issued by the judge of probate, and copied in the record, is addressed to Samuel G. McLaughlin, Charles McLaughlin, and George McLaughlin. If, when the case reached this court, Samuel G. McLaughlin had offered to confess errors, without the concurrence of Charles and George McLaughlin, he would not have been permitted to do so. So, on the other hand, if the probate court had refused to confirm the sale, and had set it aside, we apprehend no one would deny the right of George or Charles MeLaughlin to prosecute an appeal in the names of themselves and Samuel G. McLaughlin. We hold, that George and Charles McLaughlin were parties to the order of confirmation.

[2.] The necessary sequence from what we have above declared is, that the order or judgment rendered in the probate court is materially different from that described in the security for costs, and the appeal must be dismissed. Williams v. The State, 26 Ala. 85; Satterwhite v. The State, 28 Ala. 65; Dumas v. Hunter, 30 Ala. 188; Flournoy v. Mims, 17 Ala. 36.

Appeal dismissed.