| Ala. | Jan 15, 1844
The statute under which this proceeding was had, authorises an executor, who has not power by the will to sell real estate, or an administrator, when “the real estate of such testator or intestate cannot be equally, fairly and beneficially divided among the heirs or devisees,” to petition the orphans’ court for a sale of the real estate, “setting out and particularly describing in such petition, the lands proposed to be sold, and the names of the heirs or devisees of such intestate or testator, and particularly stating which are of age, and which are infants or femes covert.” [Clay’s Dig, 224, § 16.]
The petition in describing a portion of the heirs, recites, that one of the intestate’s daughters, Eliza, married one James B. Pond, and died, leaving an infant child. That both father and child afterwards died, but whether the child survived or died previous to its father, the petitioner does not know. That the fa-
This proceeding being founded on the statute, the county court cannot obtain jurisdiction so as to order a sale of the lands, unless its provisions are strictly complied with. One ofils most vital and important requisitions is, that all the heirs shall be parties to the- proceeding, for the plain reason, that otherwise, their right would not be barred by the decree of the county court
Now, in this petition, the facts are not set forth by which to ascertain who a portion of the heirs are. It is left in doubt whether the infant child of Mrs. Pond died before or after its father, and yet this fact must be known before it can be ascertained, who the heirs arc. If the lather survived his child, he became its heir,
■ and upon his death, the descent was cast upon his heirs at law. If the child survived him, then, as it had neither father or mother, brother or sister, its interest in the estate would descend in equal parts, to its nest of kin, in equal degree, both on the father and mother’s side. Now, here not only are the names of the heirs not set forth and particularly described as the statute requires, but the facts are omitted to be stated, from which it could be known who are interested in the inheritance. This most material requisition of the statute to give the court jurisdiction being wanting, it had no power to order a sale of the land, and its decree directing a sale to be made must be reversed.
The objection of the defendant in error, that this was not such a final decree as a writ of error could be prosecuted from, cannot prevail. It cannot be distinguished from a decree ordering a sale of land upon the foreclosure of a mortgage which, has always been held sufficient to sustain a writ of error. As to the parties in whose names the writ is prosecuted, if defective, as supposed, it would be amended, under the statute authorising amendments of writs of error.
Let the decree of the court below be reversed, and the cause remanded, that the petitioner may, if he thinks proper, amend his petition.