Lee v. Williams , 85 Ala. 189 ( 1887 )

SOMERYILLE, J.

The Circuit Court erred in not excluding from the jury the decree of the Próbate Court, bearing date December 12th, 1870, and in admitting in evidence the petition of the administrator of Carpenter’s estate, and the order of the court amending this decree on July 17th, 1871.

The lands described in the decree of sale were not the same lands here sued for, being situated in an entirely different section and township. The decree, therefore, had no tendency to prove a sale of the lands in controversy, by reason of this fatal variance in the description.

The petition filed by the administrator, designed to correct this misdescription, and the order made thereon by the probate judge, were equally inadmissible. This order can not be sustained under the provisions of section 2472 of the Code of 1876, or under section 2129 of the Code (1886), as contended by counsel, because there is a manifest failure to comply with the requirements of those sections, and, in the absence of such compliance, the Probate Court acquired no jurisdiction to entertain or act on the petition. We need note but two fatal defects. That section authorizes the correction of a'mistake made in the description of lands of a decedent, sold under an order of the Probate Court, in certain cases, only on the written “application of the purchaser, or his heirs, or personal representatives, or any person holding under him.” It does not authorize the, personal representative of the decedent to file such application, he being only a party defendant to it. And, to say nothing of many other requirements of this statute, notice of such application was required to be given to the heirs of the decedent, as well as to his personal representative, which was not done in this instance, and was essential to the validity of the proceeding. Anderson v. Bradley, 66 Ala. 263; Pruitt v. Holly, 73 Ala. 369.

For these errors in the admission of the evidence, and for the giving of the charge requested by the defendant, the judgment must be reversed, and the cause remanded.