143 Ala. 652 | Ala. | 1904
Lead Opinion
This is a statutory action in tbe nature of ejectment. Tbe plaintiff and defendant both claimed title to tbe land in question from a common source. The plaintiff, appellee here, rested her claim of title upon tbe fact that she was sole heir-at-law of tbe party, who was the common source. Tbe defendant, appellant here, sought to show title through administration proceedings had in tbe probate court of tbe estate of plaintiff’s ancestor, and mesne conveyances thereunder.
These proceedings bad in tbe probate court, as well as the mesne conveyances, were excluded from evidence on tbe plaintiff’s objections, and these are the rulings now complained of as error.
It is well settled that the probate court has no jurisdiction to sell the lands of an estate for the costs of an administration, or for a debt contracted by the administrator. — Beadle v. Steele, 86 Ala. 413, and authorities there cited.
The records of tbe probate court which were offered in evidence failed to show that said court bad ever' acquired jurisdiction of the sale of tbe lands of the decedent’s estate, and all proceedings, therefore, bad thereunder were void. As no title could pass by sucb void
It does not appear from the record that these proceedings had in the probate couiff, as well as the several conveyances under them, were offered in evidence otherwise than as muniments of title. It is here argued that the evidence was competent and admissible as color of title, but it does not appear that it was offered as such.
The undisputed facts show that the plaintiff’s interest was that of a remainderman, and that she instituted her suit, for the recovery of the possession of the land in question, within a few months- after the death of the life-tenant. Until the termination of the life estate the remainderman had no right of action for the recovery of the possession of the land. The statute of limitations can never run against the remainderman during the existence of the life estate, for the reason that no cause or right of action is in the remainderman, nor can there be •any adverse possession as to him for like reason. There can' be no ouster of a remainderman who has neither the possession, nor right of possession, during life of the life tenant. — Pickett v. Pope, 74 Ala. 122; Edwards v. Bender, 121 Ala. 77; Washington, Admr. v. Norwood, 128 Ala. 388, and authorities there cited.
The case at bar is- distinguishable 'from the case of Woodstock Iron Co. v. Fullenwider, 87 Ala. 584, relied on by appellant. In the case before us, there is nothing, upon which to invoke the doctrine of equitable estoppel— no application of the proceeds of sale of land to the payment of debts, etc., as was the case in Woodstock Iron Co. v. Fullenwider. We are not to be understood, in what- we have said in differentiating the present'case from the Woodstock-Fullemoider case, as re-affirming or re-committing ourselves to the doctrine there laid down.
As the defendant was unable to trace title back to the common source, from which the bill of exceptions states that both plaintiff and defendant claimed right and title, no reversible error was committed in excluding, on plaintiff’s objection, the subsequent mesne conveyances offered by defendant. We find no error in the record and the judgment will be affirmed.
Affirmed.
Rehearing
ON APPLICATION FOR REHEARING.
It is insisted in argument by counsel, on application for rehearing in this case, that the petition filed in the probate court for the sale of the land in question contained all of the necessary averments as to jurisdiction. The petition, in fact, is not set out in the record, but is only referred to in a subsequent order granting a motion made by an administrator de bonis non to sell the land under the petition referred to. But be this as it may, and conceding that the averments as to the jurisdictional facts of indebtedness and insufficiency of personal property to pay debts were sufficient, it affirmatively appears that the petition was not filed by tihe administrator of the estate of Odosia Stringer, deceased, but by one A. P. DuBose, administrator of the estate of E. H. DuBose, deceased, who ivas in his lifetime administrator of the estate of Odosia Stringer, deceased. To give the probate court jurisdiction to sell land of the deceased, the petition must be filed by the administrator of the estate of the deceased. This is the first and essential step in the order of jurisdiction, and without this jurisdiction, no valid order could be made in the premises by the court. It is a self evident proposition, that no valid judgment can be rendered, until after jurisdiction has been acquired.
The order for the sale of the land affirmatively shows that the court was .without- jurisdiction to malee it. — it carries its death warrant on its face. The statute is mandat ory. It says the application for the sale of lands must he filed by the administrator. — § 158, Code of 1896.
The application for rehearing must be denied.