75 Ala. 129 | Ala. | 1883
The material questions decided by the chancellor are, first, that the funds used by Benjamin Higgin-botham in the purchase of the lands were not his own, but were assets of the estate of George G. Higginbotham, of which he was administrator ; invested in the purchase, because of their uncertain, fluctuating value, as the best expedient for making them available to the heirs or next of kin. The second is, that the heirs and next of kin have an equity to pursue, and take in lieu of the lands, the moneys derived by the appellant from a sale of them made by him as administrator of Benjamin Hig-ginbotham. It may be conceded to the appellant that there is a want of appropriate pleading presenting this question, and upon which to base a decree granting relief to the heirs and next of kin. The court had, however, jurisdiction over the subject-matter, and the necessary parties were before it. The want of pleading the parties could waive, and it was waived by the agreement in which the appellant joined, submitting these questions for the consideration and decision of the court. The consent of parties, express or implied, can not confer jurisdiction ; but the element of jurisdiction that consent can not supply, is of •subject-matter, which must be conferred by law. Whatever pertains merely to bringing the case, the subject-matter, before the court having jurisdiction, may be waived, or it may be supplemented by consent of parties.—Thompson v. Lea, 28 Ala. 453 ; Gager v. Gordon, 29 Ala. 341. The facts upon which the decree is based are very clearly and satisfactorily shown by the evidence, and so far as the decree is within the scope of the agreement of the parties, the appellant has no cause to complain of it.
