Bland v. Bowie , 53 Ala. 152 ( 1875 )

BRICKELL, C. J.

Since the decision in Wyman v. Campbell, 6 Port. 219, it has been the uniform course of decision in this court, that a proceeding in the court of probate, for the sale of the lands of a decedent, is in rem against the land, and not in personam, against the heir or devisee. Jurisdiction of the thing, not of the person, is the element imparting validity to the proceeding. The jurisdiction is put in full exercise, when a petition is filed in the proper court, by a proper party, disclosing any of the grounds of sale expressed in the statute. See authorities collected in 1 Brick. Dig. 939, § 352-3; Wright v. Ware, 51 Ala.; Pettus v. Mc-Clanahan, 52 Ala. 55. The decisions also, are uniform, that where the jurisdiction of the court has attached a decree of sale, however erroneous and irregular it may be, or the proceedings on which it is founded, cannot be collaterally assailed. Until it is questioned and reversed on error, it is conclusive, though abounding with irregularity. 1 Birch Dig. 939, § 355. The failure of the court to give the notice required by the statute — or to appoint a guardian ad litem or to take proof by deposition of the existence of the facts authorizing sale, were irregularities occurring after the jurisdiction had attached, and in its exercise, and of consequence did not affect the validity of the decree, when drawn in question collaterally, though cause of reversal on appeal to a higher tribunal. 1 Brick. Dig. 941, § 385-6-7. The act of February 7, 1854, now forming §§ 2224-5, of the Bevised Code, operates a change of the law as settled by the decisions of this court, to this extent only — if there are infants or persons of unsound mind, interested as heirs or devisees in the lands sought to be sold, the court must take proof by deposition as in chancery proceedings, showing the necessity of sale, or the order of sale is void. Satcher v. Satcher, 41 Ala. 26. Thus converting an error or irregularity, which must occur, if it occurs at all after jurisdiction has attached, and in its exercise, into a defect, equal in its consequences to a usurpation of jurisdiction.

The court of probate has jurisdiction to order or decree the sale of lands of a decedent, on whose estate it has granted administration, or of whose Avill it has taken probate, “when the same cannot be equitably divided amongst the heirs or devisees.” B. C. § 2221. The application to the court for the order of sale, must be made by the executor or administrator — it must state the ground or necessity of sale — that is, that the lands cannot be equitably divided amongst the heirs, if they have descended to heirs, or the devisees, if they have been devised; must describe the lands accurately; must state the names of the heirs or devisees, and their places of residence, and which of them, if any, are married women, or infants, or of unsound mind, R. C. § 2222. The petition on which the decree of sale impeached by the appellants was founded, conforms in all respects to the requirements of the statute. Every fact on which a decree of sale could be rendered, is distinctly alleged. It was received and acted on by the court, and the decree of sale recites : “and it having been proven to the satisfaction of the court by the oaths of James W. Kelly, and James A. Lenoir, who are disinterested witnesses, and whose testimony has been taken by deposition, as in chancery cases, and which testimony has been filed of record in this proceeding. It is therefore ordered,” &c. It will be observed the decree does not declare of recite what was proven by the depositions — whether they proved that the lands could not be equitably divided amongst the heirs or devisees, and thus proved the ground or necessity of sale alleged in the petition, or some other fact. But it is declared that the depositions are filed of record in the proceeding. Such a reference to a paper filed in a cause, and which would not of itself be properly a part of the record, will make it a part of the record, and require that the record should be read as if it was incorporated into it by an express recital of its contents. This has been frequently affirmed in this court in reference to the answer of a garnishee, which may be oral or written. It is not part of the record unless made so by bill of exceptions or recital in the judgment entry. Gaines v. Beirne, 3 Ala. 114; Saunders v. Camp, 6 Ala. 73; Bostrick v. Beach, 18 Ala. 80. If, however, the judgment entry refers to, and identifies an answer in writing as filed, it is considered as part of the record. Jones v. Howell, 16 Ala. 695; Price v. Thomason, 11 Ala. 875; Falconer v. Head, 31 Ala. 513. These depositions thus referred to and identified by the decree of sale, must be looked to in determining whether the necessity of sale was proved. They certainly prove that in the opinion of the witnesses who knew the lands, an equitable division could not be made without a sale. It may be the evidence is subject to objection because it is a mere expression of opinion, unaccompanied by facts supporting it, or from which the court could deduce a conclusion as to its correctness. The admissibility and sufficiency of the evidence, was a matter for the adjudication of the court of probate, subject to revision on appeal by a higher tribunal. The court adjudicated the matter, and when collaterally assailed, the adjudication is conclusive. No court can assume, except an appellate court, on error or appeal, to annul, or deny validity to the judgment or decree of a court of competent jurisdiction, because it is supposed to be founded on defective pleading, or insufficient evidence. All questions of pleading, and of the admissibility or sufficiency of evidence, are involved in, and concluded by the judgment or decree. When minors or persons of unsound mind are the heirs to whom lands have descended or been devised, by force of the statute, a decree of sale is void, unless the ground or necessity of sale is proved by depositions taken as in chancery proceedings. On the court of probate is devolved the duty of determining whether the depositions have been so taken. If its record does not disclose that they were so taken, the decree of sale is void. If the record discloses that the court adjudged they were so taken, however palpable may be the error of the adjudication, it is final and conclusive, supporting the decree of sale, except when questioned on error or appeal in a proceeding for its reversal. King v. Kent, 29 Ala. 542; Hamner v. Mason, 24 Ala. 480; Wright v. Ware, supra; Pettus v. McClanahan, supra. The decree of sale made by the court of probate in 1863 is valid, authorizing a sale by the administrator of the lands described.

A sale not having been made under this decree, in 1866, the administrator applied to the court of probate for an order reviving the decree, and that he be allowed to proceed with the sale. The court made an order directing the administrator to proceed to sell the lands under the former decree. A sale was then made, at which two of the appellants became the purchasers, complied with the terms of sale, and it was reported to and confirmed by the court of probate. This order of revivor was wholly unnecessary, and if not a mere nullity does not impair the force and effect of the former decree. The statutes do not prescribe any time within which a decree of sale rendered by the court of probate shall be executed. In chancery no question can ever arise as to whether a decree of sale loses its energy because of the lapse of time intervening between its rendition and execution. The decree is interlocutory, and is kept alive by the continuance of the cause. A sale under a decree of the court of probate is a judicial sale. The court is in legal effect the vendor. Hutton v. Williams, 35 Ala. 503; Wallace v. Hall, 19 Ala. 367; Jennings v. Jenkins, 9 Ala. 289 ; Perkins v. Winter, 7 Ala. 855. Until confirmed by .the court it is not complete, and confers no rights. Borer on Judicial Sales, 55. Its confirmation rests in the sound discretion of the court, and if any injury could result from the lapse of time between the rendition of the decree and its execution, the court would not confirm, but would vacate the sale. The circumstances existing during'the interval between the rendition of this decree and the sale made, of which all courts take judicial notice, were such that an administrator jealous of the interests committed to his trust, would have felt justified in deferring a sale to be had for distribution only. The sale was reported to, and confirmed by the court of probate, and the confirmation entitles the purchaser to a conveyance of title, on the payment of the purchase money. The jurisdiction of the court to confirm was plenary, and no injury can result to the purchaser from the delay in executing the order of sale. He cannot, therefore, be heard to complain of it.

It is well settled on authority that the court of probate, or any other court of record, whether of general or limited jurisdiction, may, on a proper application, vacate any final order or decree, void on its face, at any time subsequent to its rendition ; but not for matters dehors the record, except in the event of the death of either party, when the order was made, or the judgment or decree rendered. If the judgment is not void on its face, and both parties were living at its rendition, the court cannot at a subsequent term vacate or alter it. The correction of clerical misprisions is then the extent of its authority. Pettus v. McClanahan, 52 Ala; 2 Brick. Dig. 140, §§ 137, 141, 150. The jurisdiction which the court exercises in vacating a judgment or decree, is in personam, and involves authority over the judgment, and the parties having interests in it. The first is inherent in the court, springing from its duty to make its records speak the truth, and to prevent them from being made the sources of litigation imperilling its officers and its suitors. The latter it must acquire from notice to the parties to be affected. Lamar v. Commissioners’ Court, 21 Ala. 772. When the jurisdiction of a court is in personam, notice to the parties in interest is an indispensible element to support its exercise. McClung v. Hooper, 12 Ala. 823; Eslava v. Le Petre, 21 Ala. 504.

If it could be conceded that a purchaser of real estate, at a sale made under a decree of the court of probate, could invoke the exercise of the jurisdiction of the court, to vacate the decree of sale, the order vacating the sale, on which the appellant relies, is wanting in validity because made without notice to the heirs or devisees. They have not had an opportunity of being heard in support of the decree of sale, or of asserting their rights under it. Without notice to them the court had not jurisdiction to vacate the decree of sale. They alone had interests in the decree adverse to the purchaser. The decree of sale was rendered to effect a distribution to them, and the court could not without affording them the opportunity to be heard, touch the decree it had rendered. It appears the court ordered notice to be given such of the heirs or devisees as resided without the State by publication. The heirs or devisees are not named, nor is it stated which of them resided without the State, and were to be effected by such notice. It does not appear that this notice was given, and if it had been, we are not aware of any statute authorizing it. As to the heirs or devisees, the whole proceeding was ex parte. Nor can we regard the purchaser as having any right to invoke the exercise of this jurisdiction. He was not a party to the decree of sale, and can sustain no legal injury from its invalidity.

The decree of sale being valid, and the sale made on confirmation, conferring on the purchasers, all the rights for which they contracted, or to which they were entitled, an affirmance of the judgment necessarily follows. There is another point of view, fatal to the defense attempted by the appellants, on which it is proper to announce distinctly the opinion of the court. When a sale of lands is decreed by the court of probate, and is made, and the purchaser complies with its terms, and the sale is confirmed by the court, if the record of the proceedings for sale discloses that the decedent had an interest in the lands descendible to his heirs, and vendible under the decree; or rather does not affirmatively disclose a want of such interest, the purchaser cannot defend against an action for the purchase money, because of the irregularity of the proceedings for the sale, or because of their utter invalidity. We repeat the sale is a judicial sale — the court is in effect the vendor. The maxim caveat emptor applies in all its vigor. The purchaser has full opportunity of ascertaining what is sold, and by what authority. He must inquire at his peril, if with the opportunity of ascertaining the regularity or validity of the sale, he does not inquire, or inquires, and suffers the court without objection to proceed to a confirmation of the sale, he estops himself from asserting afterwards its irregularity or invalidity. 'After confirmation, the sale is so far complete that the heirs or devisees acquire an interest in its consummation. If the proceedings are void they may elect to confirm them, and by conveyance vest in the purchaser all the interest he could have acquired by proceedings strictly conforming to the law. Of this right the purchaser cannot be permitted to deprive them. We do not doubt that it is competent for the purchaser, at any time after he discovers that the proceedings for the sale are void, to resort to a court of equity to compel the heir or devisee to elect the ratification, or the rescission of the contract of purchase. If the purchase money has been paid and distributed to the heirs, or applied by the personal representative to the payment of debts, a court of equity would compel a conveyance of title from the heirs, if they could not successfully impeach the fairness of the sale. Bell v. Craig, 52 Ala. 215. It is impossible that injury can result to the vigilant purchaser, and it cannot be allowed him to rescind at pleasure the contract of purchase, which the heirs may be willing to confirm. This would be the consequence if he could in defense to an action for the purchase money, set up the invalidity of the sale. Lamkin v. Reese, 7 Ala. 170; Jenkins v. Jennings, 9 Ala. 285; Worthington v. McRoberts, ib. 297; Burns v. Hamilton, 33 Ala. 210; Hickson v. Lingold, 47 Ala. 450.

The undisputed facts of the case required the court to charge the jury, as it did, that the plaintiff was entitled to recover, and the judgment must be affirmed.