Beene's Adm'r v. Collenberger & Co. , 38 Ala. 647 ( 1863 )

STONE, J.

The decree in this case must be reversed, for a defect in the amended affidavit of verification. The amended affidavit is sufficient, if it had established the claim against the proper estate. It proves the claim against the estate of Jesse Beene, deceased, instead of Benjamin Y. Beene. This may be a clerical error, but we find it carried into both the original and amended records.

Here this opinion might close; but we feel it our duty to pass on the merits of the controversy.

[2.] The folio wing propositions are conclusively settled by the former adjudications of this court. First: The sale of Mr. Beene, the administrator in chief, was absolutely void.—Pistole v. Street, 5 Porter, 64; Weir v. Davis, 4 Ala. 442; Dearman v. Dearman, ib. 526; Fambro v. Gantt, 12 Ala. 298; Lay v. Lawson, 23 Ala. 390; Wyatt v. Rambo, 29 Ala. 519 ; Ball v. Chapman, 34 Ala. 553; Ikelheimer v. Chapman, 32 Ala. 676. Second: Mr. Beene could not have maintained an action on the contract of sale to Collenberger & Co. The sale being contrary to law, would not support an action. — Fambro v. Gantt, 12 Ala. 298; Pettit v. Pettit, 32 Ala. 288.

[3.] From the two propositions stated above it results, that Messrs. Collenberger & Co. were under no legal obligation to pay Mr. Beene the money bid at the sale; and hence, the payment by them must be pronounced voluntary. Buying, as they did, at an administrator’s sale, the law charges them with notice of his want of authority. Money voluntarily paid, under circumstances like the present, can not be recovered back. If there was any mistake, it was a mistake of law, and not of fact. — Town Council v. Burnett, 34 Ala. 400, and authorities cited.

We deeply lament the result we are compelled to arrive at in this case. It works a most palpable. injustice, from which we would gladly relieve the purchasers at the void sale. We have struggled to find some argument, by which we could arrive at a different result, but have found none. The decisions of this court have left the law arising on questions growing out of void sales by administrators, in a deplorable state of confusion and hardship. This we could not relieve, without boldly disregarding and overruling principles which have long been considered as settled. The evils consequent upon a change of decision, might, and probably would, be greater than will result from an adherence to former adjudications. Another coordinate branch of the government can apply the corrective, without disturbing titles and possessions which now rest in confident security.

This opinion has been prepared near two years. We have held it up, in the hope that we might find some solution of the question more accordant with our wishes. Our hopes have not been realized, and we now announce the foregoing as our deliberate judgment.

Reversed and remanded.