Moore v. Cottingham , 113 Ala. 148 ( 1896 )

HARALSON, J.

1. We deem it unnecessary to construe the will of Mrs. Eleanor Coker, to determine whether the plaintiffs took such title under her will as authorizes them to maintain this action, since admitting the plaintiff’s right to sue, under the view we take of the case, they are not entitled to recover in any event.

2. The petition filed in the probate court by the administrator de bonis non with the will annexed in this case, for the sale of the lands of the testator, contained the averments, “that the estate of Eleanor Colcer, deceased, is. owing debts to the amount of three hundred and fifty dollars, and that the personal property of the estate of said decedent is insufficient for the payment of the debts thereof ; and that the will of said decedent gives no power to sell the lands of said estate for the payment of said debts,” &c. It describes the lands accurately, gives the names of the divisees of the testator and their residences, states that the last four named of them are minors, under fourteen years old, who reside with the two first named, their parents, in the county of Bibb, State of Alabama, and prays that the lands described be sold for the purpose, of paying the debts of said estate, and that such proceedings, orders and decrees may be had and made as may be proper and necessary to legally effect the sale of said lands for the purposes aforesaid.

Section 2079 of the Code of 1867, under which the petition was filed (2447 of the Code of 1876, and 2103 of the Code of 1886) provides : “Lands may be sold by the executor or by the administrator with the will annexed, for the payment of debts, when the will gives no power to sell the same for that purpose.”

It is too clear to be controverted that this petition, in that it contained the averment that the estate was owing debts to the amount of three hundred and fifty dollars, and that the personal propei'ty of the estate was insufficient to pay said indebtedness, stated a jurisdictional ground, such as the statute requires, on which the jurisdiction of the probate court attached, authorizing it to make an order for the salé of the lands for the purposes specified.. In Gilchrist v. Shackelford, 72 Ala. 13, it was said : “The petition, to be sufficient, must state one of the statutory grounds authorizing a sale;” and again, we have said : “But it is too well settled, that the jurisdiction attaches when a petition is filed by a proper party, setting forth any of the statutory grounds for a sale.” Goodwin v. Sims, 86 Ala. 105; Pettus v. McClannahan, 52 Ala. 55. The petition in this case is well nigh .complete, and certainly avers the statutory ground for the jurisdiction of the court to attach. No one of the several grounds of objection, therefore, which was interposed by plaintiffs against the validity of the petition and its introduction in evidence, nor all of them together, were of any avail; and were properly overruled.

Upon the filing of this petition the court, proceeding in accordance with the directions of the statute, set a day for the hearing; appointed a guardian ad litem for the minor heirs named in the petition, who accepted the appointment, and discharged his duties; directed notice to be given to the other defendants for ten days before the day set for the hearing; and on the day so set, the application was heard and passed on, resulting in an order for the sale of said lands for the purpose prayed for. This order, like the petition, is full and specific in the recitals of the grounds upon which it is based, and if lacking in anything to make it as complete as the most exacting could require, it was as to matters of non-essential detail, never rising higher in such proceedings than mere irregularities. The plaintiffs severally objected to the introduction of the order setting a day for the trial of said application, and to the order of sale, as will appear in the report of the case, which were severally overruled, and minute entries of the orders were allowed to be read in evidence. Such objections as the ones interposed, in each instance, were unavailing. By an unbroken line of decisions in this court for nearly sixty years, beginning in 1838, with the cases of Wyman v. Campbell, 6 Porter, 219, and Lee v. Campbell, Ib. 249, and coming down to the present time, this court has consistently and. firmly held to the rule, that when in a case of this kind, the jurisdiction of the court attaches upon the petition setting forth a satisfactory ground of sale, the order of sale is not void, although the proceedings may abound' in irregularities, such as the ones specified in the objections made by plaintiffs to this petition and order of sale, holding that such proceedings', whenever called in question on collateral attack, on account of such alleged irregularities, are to be wholly disregarded, and the order and judgment of the court upheld. One of our last utterances on the subject, by McClellan, J., in Stevenson v. Murray, 87 Ala. 444, is so clear, we venture to repeat it: “By the unbroken current of our decisions, a decree based on such a petition will be upheld against collateral attack, even though it should appear that many and gross irregularities should characterize the supervening proceedings. The one exception to the rule is that established b}?- section 2114 of the Code, which renders an order of sale void, notwithstanding the jurisdictional sufficiency of the petition, if the probate court has failed to take evidence showing the necessity of sale by depositions as in chancery.-Pettus v. McClannahan, 52 Ala. 55. But even when this is the case, and there has in fact been such irregularity in this respect as by the terms of the statute would avoid the decree upon a direct assault, yet, when the attack is collateral, either by the validity of the order, being drawn in question incidentally in other suits or proceedings, or by a petition to vacate the decree made, in and at a subsequent term of the court which rendered it, the rule is well settled with respect to this, as well as all other judgments and decrees in cases in which jurisdiction has attached, that the matter relied on as avoiding the adjudication must appear affirmatively on the face of the record.-Freeman on Judgments, § 98; Johnston v. Glasscock, 2 Ala. 522; Pettus v. McClannahan, 52 Ala. 57, 59.”

In addition to the cases already cited, we append the following, among many, sustaining the doctrine announced: Duval v. McLoskey, 1 Ala. 708; Lightfoot v. Lewis, Ib. 475; Duval v. Planters & Merchants Bank, 10 Ala. 636; Field v. Goldsby, 28 Ala. 218; Matheson v. Hearin, 29 Ala. 210; King v. Kent, 29 Ala. 542; Satcher v. Satcher, 41 Ala. 26; Robertson v. Bradford, 70 Ala. 385; May v. Marks, 74 Ala. 253; Watts v. Frazer, 80 Ala. 186; Lyons v. Hammer, 84 Ala. 197; Goodwin v. Sims, 86 Ala. 102; Thompson v. Holloway, 96 Ala. 544; Thompson v. Boswell, 97 Ala. 570; Smith v. Brannon, 99 Ala. 445; Kent v. Mansel, 101 Ala. 334.

3. The plaintiffs objected to the report of the sale by the administrator and to its confirmation by the court, on grounds substantially the same in each instance ; and to the introduction of the two deeds, one from the administrator to the purchaser, Langston, and the other, afterwards executed and delivered by Langston and wife to defendant, which several grounds will be set out in the report of the case. There was no error in the admission of these several items of evidence.

The administrator was not the purchaser, but a third person was ; and the plaintiffs were entitled to no notice of the report and application by the administrator for a confirmation and order to make title.-Dugger v. Tayloe, 60 Ala. 504; Ligon v. Ligon, 84 Ala. 555; Bogart v. Bell, 112 Ala. 412.

We have been invited in a lengthy and vigorous argument by plaintiffs’ counsel, to review our former rulings and overrule them, as being wrong in principle. This we are not permitted to do without destroying the ancient landmarks of the law, impairing confidence in j udicial decisions and unsettling a rule which we regard as sound in principle, and on which titles to property of untold.value depend. The question must be regarded, so far as we can make it, as finally settled in this court.

There was no error in giving the general charge for the defendant. It is, therefore, unnecessary to consider other assignments of error.

Affirmed.