63 Ala. 574 | Ala. | 1879
The following propositions are settled by the numerous decisions of this court, as the result of our statutes :
First: That, upon the death of one seized of a heritable estate in lands, the title descends eo instanti, and vests in the heir at law, if there be no will giving it a different direction; that with the title, there also passes to the heir at law the right to the possession and after-accruing rents and profits, subject to the statutory power of tbe personal representative to take possession and claim rents accruing, or to let to rent, or to obtain an order and sell, for the purposes of administration. This right of immediate possession is .further qualified by the homestead rights of the widow and minor children, if there be such; by the quarantine rights of the widow; and, in case there be a plantation on which a crop has been commenced by decedent, a further limitation to the end of the year. — See Code of 1876, §§ 2562, 2238, and 2439 ; Constitution of 1875, Art. 10, §§ 3 and 5. With these exceptions, the title and right to the possession vest in the heir, as above stated.
Second: That the personal representative, subject to the homestead and quarantine rights as above stated, may claim. and take possession, let to rent, or, in case of lands in the hands of a tenant, may give notice and claim rent, past due, or to accrue, and may obtain an order and sell, when a statutory ground exists, and thus confer on the purchaser the right to the possession, to the exclusion of the heir at law— all for the purposes of administration; that to these ends he may successfully prosecute an action of ejectment against an intruder, and may likewise prosecute or defend successfully an action for the possession against the heir at law himself; that a possession and control of the realty, thus taken by the personal representative, destroys or suspends the heir’s right to the possession, and to rights of action which at common law descended with the land to him, as the possession may terminate in a sale and divestiture of the title, or with a temporary use, or letting to rent.'
Third: That, to suspend or destroy the heir’s right to the possession of the inheritance, the persopal representative must actually take possession, or must assert his right, and follow it up with the means necessary to that end. — Masterson v. Girard, 10 Ala. 60; Harkins v. Pope, Ib. 493; Martin v. Williams, 18 Ala. 190; Chighizola v. LeBaron, 21 Ala. 406; Smith v. Kyles, 22 Ala. 558; Branch Bank v. Fry, 23 Ala. 770; Golding v. Golding, 24 Ala. 122; Russell v. Erwin, 41 Ala. 292; McCullough v. Wise, 57 Ala. 623.
It results from these well-settled principles, that the right
Under these principles, we do not think Mr. Olay ever took or had such possession or control of the premises, as to suspend, or oust the possession of the heir. His attempt to let the house to rent failed for want of compliance, on the part of the proposed lessee, with the terms of the letting; and he not only did not sell, but made no attempt to sell, under the order of court obtained for the purpose. . These initiatory steps, as we have seen, do not amount to a taking of possession by the personal representative. The Circuit Court erred in not giving the first charge asked by plaintiff. The court should also have given charges numbered 5 and 6, as so asked.
Section 101 of the ordinances of the city of Huntsville,
In the Bill or Declaration of Rights, article I of our several constitutions, it is declared, that no person shall be deprived of his property, but by due course, or process of law. Constitution of 1819, § 10; of 1861, § 10; of 1865, § 7; of 1868, § 8 ; of 1875, § 7. The principle of this provision was adopted from Magna Oharta. It is here uged, that the provisions of the ordinance copied above violate this fundamental principle of constitutional right, and are therefore inoperative, In our own case of Dorman v. The State, 34 Ala. 216, justly entitled to be classed as a great case — great alike in the profound research it displays, the clear logic of its conclusions, and the elegant diction in which it is expressed — this provision of the constitution came before this.court for interpretation. It was there said : “ The expressions, ‘ the law of the land,’ due process of law,’ and ‘ due course of law,’ as found respectively in the English charters and in the various State constitutions in the United States, are substantially identical, and have always been held to mean a judicial proceeding regularly conducted in a court of justice, as contradistinguished from statutory enactment. . . An act of the legislature is not, and nothing less than a regular judicial trial is-, ‘ due course of law,’ within the meaning of this clause of the constitution.”
An ordinance of the city of Selma provided, that a purchaser of lands at tax-collector’s sale might recover possession. if withheld from him, by action of unlawful detainer before a justice of the peace. The case of Ex parte Webb, 58 Ala. 109, made it necessary to construe that ordinance. We said: “ The proceeding by the purchaser at the tax-sale is founded on the theory, that he has acquired title by his purchase, and the title draws to it the possession. . . Unless the party proceeded against is deprived of all right of defense, or his right of defense is narrowed and circumscribed, so that generally it would be valueless, there must, of necessity, be an inquiry into the estate, or merits of the title. . . A legislative declaration, that the party withholding the possession is guilty of an unlawful detainer,.and that suit for the recovery of possession, and damages for the detention, may be commenced before a justice of the peace, can not be so construed as, in effect, to disseize a man of his freehold, and convert his estate into a mere right of action.” See, also, Stoudenmire v. Brown, 48 Ala. 699; S. C., 57 Ala. 481; Doe, ex dem. Davis v. Minge, 56 Ala. 121.
In Cooley’s Const. Lim. 363, it is said: “ Forfeitures of rights and property can not be adjudged by legislative act; and confiscations, without a judicial hearing afte? due notice^
In Burroughs on Taxation, 336, it is said: “ The doctrine is settled, that it is not in the power of the legislature, by mere legislative declaration, to devest the title of the owner.” In Denny v. Mattoon, 2 Allen, 361, 378, the court employs the following language : “ If, for example, the practical operation of a statute is to determine adversary suits pending between party and party, by substituting in the place of the well-settled rules of law the arbitrary will of the legislature, and thereby controlling the action of the tribunal before which the suits are pending; no one can doubt that it would be an unauthorized act of legislation, because it directly infringes on the peculiar and appropriate functions of the judiciary.” — See, also, Richards v. Rate, 68 Penn. St. 248; State of Maine v. Doherty, 60 Maine, 504; Conway v. Cable, 37 Ill. 82.
These principles and authorities are decisive of the question we are considering. The ordinance is but an act of’legislation, and possesses none of the properties of a judicial proceeding. It is violative of the constitution, and therefore void, to. the extent above pointed out; because it deprives the tax-payer of his property, without due course of law, The collector’s certificate neither authorized Eletcher to take possession without the owner’s consent, nor did it authorize
We consider it unnecessary to decide any other questions raised by tbe record.
Reversed and remanded.