Smith v. Brannon , 99 Ala. 445 ( 1892 )

McCLELLAN, J.

The theory of the bill of complaint in this case is that the complainant, James E. Brannon, is a sub-purchaser under a void sale of the land in controversy, which belonged originally to A. H. Smith, now deceased, made by the administrator of said Smith in 1872; that the purchaser at that sale,‘under whom complainant claims, paid the purchase-money in full, that this money was received by the heirs of said Smith, who are defendants to the bill, and appropriated and used by them or for their benefit, and that upon these facts, the complainant. is entitled to have the legal title, which the void sale was inoperative to pass, divested out of them and invested in himself. The supposed infirmity of the sale by the administrator of Smith is alleged to lie in the insufficiency of the petition, filed by him in the Probate Court for an order of sale, to confer jurisdiction on that court to make such order. The bill as amended avers the contents of said petition as follows : “The said H. W. Moore, as the administrator of the said A. H. Smith, filed his written application with the Probate Court of Cleburne county [in which the land was situated], alleging that there was no personal property belonging to said estate with which to pay the debts of said decedent, and that it was necessary to sell said lands to pay the debts of said estate.” In Abernathy v. O’Reilly, 90 Ala. 495, this court held the averments stated above in a petition by an administrator to sell the lands of his intestate to be insufficient to confer jurisdiction on the Probate Court to decree a sale, and, of consequence, that an order made by the court on such a petition and the sale thereunder were absolutely void. Doubtless the present bill was framed with reference to that decision; and if tbat case were now the law, tbe bill would be sustained, at least so far as its equity rests upon tbe invalidity of the administrator’s sale. But the doctrine declared in Abernathy v. O’Reilly is not now the law of this State. That case has been directly and expressly overruled, and the law declared to be that an application by an administrator to sell lands belonging to the estate of his intestate, which alleges that there is no personal property or an insufficiency of personal assets, to pay the debts of the decedent, and that a sale of the lands of the estate is necessary to pay said debts, contains the essential jurisdictional allegations as to the existence of debts, the insufficiency of personal assets for their satisfaction, and the necessity for a sale of the lands of the estate to that end, and confers jurisdiction on the court to decree a sale. Cotton, Admr. v. Holloway, 96 Ala. 544.

It is manifest, therefore, that upon the averments of this bill the complainant now has what he seeks to acquire through the decree he prays, namely, the legal title to the land in controversy ; and it follows of course, that the bill is without equity, and the chancellor erred in overruling the motion of respondents to dismiss it out of court on that ground.

Whether on the facts shown in the record before us equity could be injected into the bill by amendment, it is not necessary or proper for us to decide on this appeal.

The decree of the Chancery Court is reversed and the cause remanded.