Beasley v. Howell , 117 Ala. 499 ( 1897 )

BRICKELL, C. J.

This was a statutory real action originally instituted by James W. Clark, against appellants in the year 1890 in the circuit court of Coffee county, to recover certain lands situated in said county together with damages for their detention. The principal question involved in the appeal is, whether the action, which upon the death of the original plaintiff, had been revived in the name of the administrator of his estate appointed by the probate court of the county in which the land is situated, can, upon the resignation of such administrator, be revived and prosecuted in the ■name of an administrator subsequently appointed by the probate court of another county of which the deceased was a resident at the time of his death, but in which he left no assets. The facts are that said Clark died intestate in December, 1893, in Butler county, where he then resided, leaving no assets in said county, but claiming to own the lands in controversy in Coffee county. In July, 1894, letters of administration on the estate of decedent were granted by the probate court of Coffee county to D. D. Howell, and at the ensuing term of the circuit court this cause was revived in his name as such administrator. Subsequently, in May, 1895, said Howell reported to said probate court that no assets of the estate had come into his possession and resigned the trust, and an order of court was entered accepting- his resignation and discharging him from further liability. In July, 1895, he applied to the probate court of Butler county for letters of administration on the estate, and the same were granted and issued to him, and he qualified as administrator under said appointment. Before entering upon the trial of the cause the above facts were stated to the court, and admitted by the defendant to be true, and a motion was made to revive the action in the name of D. D. Howell as administrator, which motion was resisted by the defendant, who moved to strike the cause from the docket. The motion to strike was refused, and the cause was revived, and this ruling of the court is assigned as error.

The jurisdiction of the probate courts of the subject matter of the grant of administration is derived from the constitution and not from the statutes. The latter merely designate the particular cases in which the courts have authority to grant administration in their respective counties. Hence, in this respect the jurisdiction of these courts is original, unlimited and general, and being such, their orders and decrees granting administration are entitled to the same presumptions, when collaterally assailed, as are extended to the decrees of other courts of general and unlimited jurisdiction. Whatever within the jurisdiction has been done will be presumed rightfully done until the contrary is shown, and facts necessary to give the court jurisdiction to grant the administration, and which must have been ascertained by the court to exist, will be conclusively presumed, on collateral attack, to have been ascertained, unless the record itself affirmatively discloses the contrary.—Kling v. Connell, 105 Ala. 590 ; Barclift v. Treece, 77 Ala. 528 ; Burnett v. Nesmith, 62 Ala. 261; Ikelheimer v. Chapman, 32 Ala. 677 ; Bradley v. Broughton, 34 Ala. 694; 3 Brick. Dig. 455. But althouglrthis presumption is conclusive as to the existence of facts sufficient to give the court jurisdiction, it is not conclusive as to the nonexistence of facts which are not necessarily involved in the determination by the court granting the administration of the question of its jurisdiction to grant the same, and which, if they existed, would exclude the jurisdiction of the court to grant /the administration in a particular case, and render its act a nullity.. When the record is silent as to such facts, — -and in ordinary cases it is silent, — their existence may be proven, even on a collateral attack, for the purpose of showing an entire want of jurisdiction and thereby impeaching the validity of the grant. To illustrate, it cannot be shown on-a cohlateral attack that the intestate did not reside or have assets in the county where the administration on his estate was granted, the fact of residence or possession of assets being conclusively presumed to have been ascertained by the court.—Coltart v. Allen, 40 Ala. 155; Kling v. Connell, 105 Ala. 590, supra. But it cannot be doubted that it may be shown by testimony outside of the record that at the time of the grant the probate court of another county had previously taken jurisdiction of and granted administration on the same estate, and that there was no vacancy in the administration. There cannot be at the same time and in the same jurisdiction two administrations of the same estate, yet this would be the effect if the presumption arising from the second grant was conclusive against the non-existence of any former grant. If the first grant was valid, or voidable only, the second would necessarily have to be regarded as mere nullity. — McDowell v. Jones, 58 Ala. 35; Matthews v. Douthitt, 27 Ala. 273. Was, then, the grant of administration by the probate court of Butler county valid, or voidable only,- or was it absolutely void for want of jurisdiction? “Where the intestate, being an inhabitant of the State, dios leaving no assets subject to administration in the county of hi's residence, and no administration has been granted-in such county within three months after the death of the intestate, then administration may be granted in any county where the intestate leaves assets.” — Code of 1886, § 2013, sub-div. 5; (Code of 1896, § 55). The lands in Coffee county, were assets of the estate of the intestate, and his personal representative was entitled to maintain suit to recover possession thereof and damages because of their detention. The intestate not having left assets in the county of his residence, and administration therein not having been granted within three months after his death, administration was properly granted by the probate court of Coffee county. When thus granted the jurisdiction of the probate court of every other county was excluded by statute— Code of 1886, § 2034, (Code of 1896, § 77) — and so long as the probate court of Coffee county retained jurisdiction of the estate, which it had acquired by the grant of administration, the grant of letters by the probate court of any other county would have been a nullity, and would have vested in the administrator appointed no title whatever to the assets of the estate'. , What was .the effect, then, of the resignation of Howell, the administrator? Did it operate to terminate the 'exclusive jurisdiction of the probate court of Coffee county, and to restore to the probate court of the county of intestate’s residence, or of other counties in which there may have been assets of the estate, the concurrent jurisdiction which had been excluded by the grant of letters by the probate court of Coffee county? or did the exclusive jurisdiction of the estate and of the appointment of an administrator de bonis non still remain in the latter court? If it had the former effect, then the subsequent grant of administration by the probate court of Butler county was a valid exercise of its jurisdiction, and the cause was properly revived; if the latter, then the grant of letters by said court was a nullity, no title to the assets of the estate vested in the administrator thus appointed, he was not the successor in interest of the former administrator, and the action can, not be revived in his name.. Section 2064 of the Code of 1886 (Code of 1896, § 111), provides that “if the sole'executor, or all the executors or administrators die, resign or are removed, the probate court having jurisdiction of the estate must grant letters of administration with the will annexed, or of the goods, chattels, rights, etc., unadministered to the person entitled thereto’, as in cases of intestacy." The words, “the probate court having jurisdiction of the estate," can, of course, have reference only to the court ■which had appointed the administrator in chief. By •the provisions of this statute, upon the resignation of 'Howell not only did the probate court of Coffee county have authority, but it was its duty, to appoint an administrator de bonis non of the estate of Clark, so long as it 'did not appear that the estate had been fully administered. This being the case, its jurisdiction- remained, and necessarily excluded the jurisdiction of the probate court of any other county. The grant of administration by the probate court of one county, while the probate court of another county has jurisdiction of the estate, acquired by having previously appointed an administrator in chief, with the power and duty to appoint an administrator de bonis non, must necessarily be absolutely void, and not merely voidable. Such appointment could not exclude the jurisdiction of the latter court to appoint an administrator de bonis non, which is vested exclusively in it by section 2064, and the exercise of this jurisdiction would clothe the administrator appointed with rights paramount to those of an' administrator appointed by any other court. The fact that there was a vacancy in the administration caused by the resignation of Howell, the administrator in chief, did not, therefore, operate to terminate the exclusive jurisdiction which the probate court of Coffee, county had acquired by his appointment, nor to restore to the probate court of Butler county, the concurrent jurisdiction which- had been excluded by the appointment of the administrator in chief by the former court. To hold otherwise would lead to the conclusion either that there can be two administrations of the same estate, within the same jurisdiction, at- the same time, or that the administration of an estate, after the resignation of the administrator in chief, can be removed from the probate court of one county to that of another without legislative action, neither of which conclusions can be maintained. — Van Hoose v. Bush, 54 Ala. 342; McDowell v. Jones, 58 Ala. 35. As a grant of administration de bonis non is absolutely void for want of jurisdiction, when there is no vacancy in -the administration, and as such want of jurisdiction-may be shown in a collateral proceeding, so, for the satne reason and upon like principle, a grant of administration by one court is absolutely void for want-of jurisdiction, when, at the time of the grant, another probate court had jurisdiction of the estate with the power and the duty to appoint an administrator de bonis non, and on a collateral attack such want of jurisdiction may be shown. The grant of administration by. the probate court of Butler county was a mere nullity, conferring no rights on the administrator appointed, and the cause was, therefore, improperly revived.

But notwithstanding the cause was improperly revived, it was not error to refuse to strike' the cause from the docket. Section 2603, Code of 1886, provides that upon the death or other disability of the plaintiff or de-. fendant, if the cause of action survive, the action “must, on motion, within eighteen months thereafter be revived in the name of or against the legal representative of the deceased, his successor or party in interest.” This statute authorizes a revivor in the name of the successor in interest, or in the right to sue, of the person whose death or disabiliby made necessary the revivor, and the action may be revived within eighteen months. from the occurrence of the event which renders it necessary to revive, whether such event was the death or disability of the original party, or of one in whose name the action had previously been revived. — Brown v. Tutwiler, 61 Ala. 372. The immediate event which made it necessary to revive the present action was the disability of the administrator, caused by his resignation, and not the death of the original plaintiff, and less than eighteen months having elapsed since the occurrence of that event, although a longer period had elapsed since the death of Clark, the motion to revive was .within time to prevent the abatement of the action. Upon motion an order should have been entered reviving the cause in the name.'of the administrator de bonis non when, made known. Section 2265 (Code of 1896,. § 333) has reference only to actions commenced by the executor or administrator, and can not, therefore, apply in this case.

Many of the other assignments of error. involve questions - which were considered and determined on the former appeal of .this case. — Beasley v. Clarke, 102 Ala. 254. The possession of land which may ripen into a title inust be adverse and under a claim of right, not permissive nor in subordination to the right or title of another, — must be actual, open, notorious, exclusive, hostile and continuous for the period of ten years, and the burden of proof is on one who claims title by reason of adverse possession to prove that the possession was adverse. If either of these characteristics of the possession be wanting the bar of the statute is not complete. There was no error in giving charges 1 and 2 at the request of the plaintiff. Charges “A” and “B” requested by the defendant were properly refused because they predicate the right to a verdict upon actual possession only. The general charge in favor of the defendants -was properly refused. A mere vacancy in the occupancy of agricultural land for a reasonable time, caused by the abandonment of the land by one tenant and the putting of another in possession, does not necessarily break the continuity of the landlord's possession, when there in no intention on his part to abandon the possession. A vacancy of this character for a period of two months has been held not to constitute an interruption of the continuous possession. — Gary v. Woodham, 103 Ala. 421. There was evidence tending to show that one who had been put in possession of the land in controversy in 1880 by the grantor of defendant, after beginning to make a crop abandoned the land without the landlord's knowledge in May of that year, and that in the summer or fall of the same year the landlord put another tenant in possession. These facts did not necessarily constitute a break in the continuity of the landlord's possession. Charge 2, requested by defendant, does not correctly hypothesize these facts, and was properly refused, but charge 3 should have been given. Charge 4 was considered 'on the former appeal and held to have been properly refused. The court did not err in admitting the testimony of Chandler that Wilkinson had told him in the fall of 1873 that ‘ ‘the land did not belong to him, but belonged to Clark,” since the evidence was undisputed that Wilkinson was in possession of the land from 1858 or 1859 until his death in 1874; the character of that possession alone being disputed.— Beasley v. Clarke, 102 Ala. 258. The testimony as to the source and character of Boyett’s possession was properly admitted, tending, as it did, to show a continuance of the possession of those through whom defendants claimed title.

' The judgment of the lower court is reversed and the cause remanded.