Little v. Marx , 145 Ala. 620 ( 1905 )

ANDERSON, J.

Section 158 of the Code of 1896 provides that the application for the sale of lands, among other things, must describe the land accurately. The application in the case at bar describes certain lands Iw metes and bounds, all of which it seeks to sell, “except 150 acres thereof deeded by Aaron Little to Ann Little on February 20, 1893,” but makes no pretense of describing or identifying the land so deeded. The purpose of the statute is to require such a description of the land in the application that a decree can he rendered thereon that will he so exact and accurate that a purchaser at a sale thereunder will know from the proceedings just Avhat land he bought. The decree in this case describes the land as does the application. The result Avould be that a purchaser at a sale thereof would have to ascertain Avhat land “Aaron” deed to “Ann,” in order to know AA'hat he had bought. It might- be that Ann never recorded her deed. Then he Avould have to locate the deed to ascertain Avhat Avas sold under a judicial decree. Again, the deed may be lost, and it AA'onld therefore be a question of parol speculation as to what land Avas really sold. — Code 1896, § 158 ; Kornegay v. Mayer, 135 Ala. 141, 33 South. 36.

Counsel for appellants insist upon a ruling on this question in their brief, and, Avhile Ave think the description insufficient, no one of the eight grounds of demurrer interposed presents the question, and we cannot, therefore, hold that the trial judge is in error, as the petition Avas not subject to the grounds of demurrer assigned. — Cotton v. Holloway, 96 Ala. 544, 12 South. 172. In a proceeding of this character the formal pleadings pertaining to courts of kiAV and equity are not contemplated, nor are they usual or practiced. “The ansAver of the heir or deAdsee is sufficient, if in terms it denies the existence of debts, for the payment of which a sale of the land is sought.” — Gayle Johnston, 72 Ala. 254. 47 Am. Rep. 405, and cases there cited. If defenses set up in special pleas are available under the general issue, if there be error in sustaining a demurrer or motion to strike, it would be error Avithout injury. — Beall v. Folmar, 122 Ala. 414, 26 South. 1.

Section 129 of the Code of 1896 provides that a claim held by the personal representatiAre or in Avhich he is interested and which accrued prior to the grant of letters must be presented within twelve months of the grant of letters, by filing the same, verified by affidavit, in the office of the probate judge, as is provided by section 133 of the Code. “The existence of a necessity for subjecting lands to debts is the essence of the application, the burden of proving which is on the administrator. Any facts which will show the non-existence or extinguishment of debts is available to the heirs as a defense.” —Kornegay v. Mayer, 135 Ala. 141, 33 South. 36 ; Warren v. Hearne, 82 Ala. 554, 2 South. 491 ; Trimble v. Fariss, 78 Ala. 269 ; Steele v. Steele, 64 Ala. 438, 38 Am. Rep. 15. The court, therefore, erred in granting the relief in so much that the administrator did not establish a compliance with the foregoing statutes as to presenting and filing the claims.

Section 164 of the Code of 1896 provides that “* * * the applicant must show to the court that the personal property of the estate is insufficient for the payment of debts; and such proof must be made by the deposition of disinterested witnesses and filed and recorded.” This court, in construing this statute, has held that depositions “must not necessarily be used to prove debts.”— Poole v. Daughdrill, 129 Ala. 208, 30 South. 579 ; Alford v. Alford, 96 Ala. 385, 11 South. 316. It has never been held, however, that the insufficiency of the personal property to pay debts can be proved except as is required by the statute. On the other hand, as stated in the Alford Case, supra, “the one fact required to be proved by such testimony (that is, by deposition of disinterested witnesses) is the insufficiency of the personal property of the estate for the payment of debts. The only effort to prove this fact was by the deposition of J. L. Marx alone, which was not sufficient, and the judge of the probate court erred in rendering a decree of sale on this testimony.

There are no facts disclosed by the record that would indicate that the witness J. L. Marx was incompetent under section 1794 of the Code of 1896, as he is in no way a party to the proceedings or interested in the claim of J. Marx & Co.

The judgment of the probate court is reversed, and the cause remanded.

Reversed and remanded.

Haralson, Dowdell, and Denson, JJ., concur.