Martin's v. Truss , 50 Ala. 95 ( 1873 )

PETERS, C. J..

This case is precisely similar to the case of Hickson et al. v. Lingold et al., decided at the January term of this court, 1872. In that case, Chief Justice Peck, delivering the opinion of the court, says: “ Where executors sell the lands of their testator, under an order of sale by the probate court for that purpose, if the vendee gives his notes for the purchase-money, and is let into and retains the possession of the premises, he cannot, at law, defend an action by the executors on said notes, on the ground that the order of sale was erroneous ; even its utter invalidity is no defence to such an action.” 47 Ala. 450. The principle thus laid down fully covers the point made in this case, in favor of the appellant. Even in equity, the fact that the sale was void would not be a sufficient ground for relief, when it appears that there was no warranty, no fraud, and no mistake or ignorance of any material facts. Burns v. Hamilton, adm'r, 33 Ala. 210. While the defendant in the court below remained in possession of the lands purchased under the order of the probate court, he could not defend, at law, a suit for the purchase-money.

Therefore, upon authority of the case of Hickson v. Lingold (47 Ala. 449), the judgment of the court below is reversed, and the cause remanded. '