Cantelou v. Whitley , 85 Ala. 247 ( 1887 )

STONE, C. J.

Four persons, all under twenty-one years of age, two of them married women, were equal owners and tenants in common of the premises in controversy, being certain lots in the city of Birmingham. One of the tenants, Mrs. Shepherd, through her husband as next friend, filed her petition in the Probate Court of the county in which the lots were situated, averring that they “can not be equitably partitioned or divided without a sale.” — Code of 1886, § 3253. The petition is in all respects regular, gives the names, ages and residences of the other joint owners, and states which of them are married women, with the names of their husbands. The Probate Court took jurisdiction of the case, granted an order of sale, and appointed commissioners to make the sale. The commissioners sold the lots; Whitley and another became the purchasers, paid the purchase-money, and received a conveyance, after the sale had been reported to the Probate Court and confirmed. With a single exception, after stated, every thing done appears to have been regular; and only the one ground is here urged against the validity of the sale.

Notices of the filing of the petition, and of the orders made, were issued to the other tenants in common, of whom Bobert C. Cantelou, a minor, was one. He was living with his grand-father, and the notice was served on the grandfather as his custodian. A guardian ad Mem was appointed for him, and he acted. It is contended for appellant, that because the notice was not personally served on Bobert C., the minor, the whole proceedings are void, and the sale conferred no title.

If this case had come before us on appeal from the order of sale, a very different question would have been presented. We might have felt it our duty to reverse such order. Hodges v. Wise, 16 Ala. 509; Clarke v. Gilmer, 28 Ala. 265; Dow v. Whitman, 36 Ala. 604; Diston v. Hood, 83 Ala. 331. In this case, however, the question comes up collaterally, when a different rule prevails. It has long been settled in this State — too long to be open to further controversy— that when the question, comes before us in this form, the prime question is, did the court acquire jurisdiction of the subject-matter, and exercise it? If the petition on its face contains the requisite jurisdictional averments, and does not itself disclose that other parties, or other interests, are not properly presented, then, mere irregularities in the after proceedings do not impair the validity of the sale. — Field Goldsby, 28 Ala. 218; Landford v. Dunklin, 71 Ala. 594; McCorkle v. Rhea, 75 Ala. 213; Whitlow v. Echols, 78 Ala. 206; Watts v. Frazer, 80 Ala. 186; Morgan v. Farned, 83 Ala. 367; Lyon v. Hamner, 84 Ala. 197.

There is no error in the record.

Affirmed.