61 Ala. 326 | Ala. | 1878
The irregularities and errors in the proceedings of the Probate Court upon the application of Alger-non S. Bibb as administrator of the estate of Mary Terry, deceased, (of whom appellees were heirs-at-law,) for the sale
It has also further been ruled that when proceedings and a decree of this kind are brought into question collaterally, “public policy requires that all reasonable presumptions should be made in support of such sales,” and that “ if a different rule prevailed, purchasers would be timid and estates consequently be sold at diminished value, to the prejudice of heirs and creditors.” — Goforth v. Longworth, 4 Ohio, 129, cited in Wyman v. Campbell, 6 Porter, 242, and in other Alabama cases. In the case last named, Collier, C. J., said: “It is impossible to conjecture the vast amount of property holden under sales made by order of the Orphans Court, and we all know that in at least three-fourths of the cases, the records are remarkable for their want of technicality and legal precision.” Of the application to sell, this court in King v. Kent’s Heirs, declared: “ When the petition is directly assailed, the question is one of pleading, and the intendments are made against the pleader: but a different rule prevails when the proceedings have gone into a decree under which rights of property have attached. Then, every reasonable intendment in the construction of the language of the petition must be in favor of the validity of the paper. . . . We should understand the petition as it is reasonable to infer that the party who made it and the judge who acted upon it, did understand it, and not as they were bound to understand it.” — 29 Ala. pp. 553, 554. And again in Wright’s Heirs v. Ware, 50 Ala. pp. 557-8, it was reiterated;
But, though it be thus shown that the jurisdiction to sell was acquired, yet according to a statute of 1854, (now section 2458 (2225) of the Code of 1867,) “no order for the sale of' land belonging to any estate must be made, when there are minors or persons of unsound mind interested in such estate, unless the Probate Court has taken evidence by deposition as in chancery proceedings, showing the necessity of such sale. . . . Any order of sale and sale made without a compliance with the requisitions of this section, shall be
An entry on the minutes of the court of its proceedings on the day when the petition was considered and the order of sale made, after a recital of the appearance of the heirs by their previously appointed guardian, sets forth that “E. M. Kerr, commissioner heretofore appointed to take testimony in said cause, having reported the same,” it “is approved and ordered to be filed; . . . and the court proceeded to examine said testimony, and from said testimony it appears to the court that said land can not be equitably divided among the heirs-at-law without a sale thereof,” &c.; whereupon the order of sale was made. This brings the case directly within the ruling upon this very point of Wright’s Heirs v. Ware, supra. And “testing the recitals of this record by the presumptions extended to judicial proceedings when collaterally attacked, we feel justified in declaring that it appears from the record that depositions proving the necessity of sale, were taken as in chancery proceedings.” Hence, the argument founded upon this supposed defect Mis to the ground.
The propositions discussed are the only ones on which it could be contended that the orders and decrees of the Probate Court are void. So far as they were merely voidable and might have been reversed on appeal for error, they can not be collaterally assailed; and to what extent they might have been so impugned, we need not now inquire.
The record shows that the Probate Court had jurisdiction to make the sale, and was, in fact, the vendor of the land through the agency of the administrator. Under its order, the land was sold, and the sale was reported to and confirmed by it. Also, upon the report of the administrator that the price had been paid by the purchaser,' Lowe, to him, its final decree was made in pursuance of the statute, empowering the administrator to convey to Lowe, his heirs and assigns, all the right, title, interest and estate which the deceased Mary Terry had .in the land, — judicially determining that the purchaser having paid for the land, was owner thereof, and entitled to such a deed of the same. Lowe, after the sale to him, “conveyed the lands in dispute” to Algernon S. Bibb, the administrator, for $600, and he conveyed to one Bailey, who, in 1860, conveyed to appellee, a corporation now named The Bishop Cobbs Orphan Home.
The record further shows that the administrator, on his
Let the decree of the chancellor be affirmed.