Morgan v. Farned , 83 Ala. 367 ( 1887 )

SOMERVILLE, J.-

— 1. The statute provides, where a proceeding is commenced in the Probate Court, either for the partition of property owned by tenants in common, or for the sale of such property for distribution among the same class, that the application must set forth the names of all the persons interested in the property, and their residences, giving a full and accurate description, if it be land, with a statement of the interest of each person in the same, and of the number of shares into which it is to be divided. And these allegations are generally held to be jurisdictional. McCorkle v. Rhea, 75 Ala. 213; Whitman v. Reese, 59 Ala. 532; Johnson v. Ray, 67 Ala. 603; Whitlow v. Echols, 78 Ala. 206; Ballard v. Johns, 80 Ala. 32.

2. The alleged defect pointed out in the present case is, that the petition fails to set out the residences of the persons, who are described as interested in the property. This would, no doubt, be a good ground of demurrer to the petition, and a reversible error, on direct assailment by appeal. Perhaps it might be regarded as jurisdictional, if there was no appearance o£ the defendants in the court below, but tbis we do not positively decide. But the matter of jurisdiction is divisible into that over tbe subject-matter,- and that over tbe person. While tbe former can not be obtained by consent, tbe latter may be — a voluntary appearance being regarded as a waiver of any want of service. The purpose of requiring tbe residences of tbe interested parties to be stated, can be only to better insure their identity, and tbe certainty of then’ being regularly made parties, and of having tbe opportunity to appear and defend. If they actually appear, therefore, and make defense, without interposing any objection based on tbe failure to state their residences in tbe application, tbis is a waiver of tbe irregularity, and tbe court obtains jurisdiction over tbe parties as fully as if there was no such omission in tbe application, analogous to tbe rule prevailing in tbe case of summary judgments rendered by courts possessing limited jurisdiction. — Ratcliff v. Allgood, 72 Ala. 119.

Tbe defendants having here made an appearance, we are of opinion, that tbe defect in tbe petition does not vitiate tbe sale on collateral attack, tbe jurisdiction acquired over tbe subject-matter and tbe persons of tbe parties being complete.

3. Tbe other objection is equally without merit. Tbe petition avers tbe facts, that tbe petitioner and tbe defendants are joint owners of tbe lands; that each is entitled to a one-third interest therein; and that tbe land can not be fairly and equitably divided between tbe owners. These allegations, taken in connection with tbe description of tbe lands, confer jurisdiction, and they are not rebutted by any additional statement as to tbe manner in which tbe title was acquired. Tbe fact that the'petitioner, Mrs. Morgan, is described as tbe widow of tbe decedent, is not inconsistent with tbe fact of her being a joint owner of tbe lands. Tbe petition alleges also tbe insolvency of tbe estate; and under tbe provisions of section 2061 of the Revised Code of 1867, in force at tbe time of tbe decedent’s death, a homestead legally selected and set apart from' tbe lands of tbe decedent vested jointly in tbe widow and children, as tenants in common. On collateral attack, we must presume that tbe allotment under tbis section was regular, in order to sustain tbe validity of tbe title acquired at tbe sale made under Probate Court proceedings. Tbis is no unreasonable presumption, in view of tbe allegation of tbe insolvency of tbe estate, and tbe joint .ownership of tbe lands. — Pollard v. Hanrick, 74 Ala. 334, aucl cases cited on page 337; Whitlow v. Echols, 78 Ala. 206.

Tbe court- correctly admitted in evidence tbe Probate Court proceedings under wbicb tbe defendant acquired title, and did not err in giving tbe general affirmative charge requested in bis behalf.

Judgment affirmed.