Collins v. Johnson

45 Ala. 548 | Ala. | 1871

Lead Opinion

PETEBS, J.

This is an action of ejectment, commenced by Collins against Johnson, on the 5th day of October, 1867, in the circuit Court of Barbour county, in this State. The defense was interposed under “ a plea of not guilty.”

The facts necessary to be noticed in this opinion are these : On the 28th day of December, 1840, the administrators of the estate of Stephen Johnson, deceased, filed their petition in the orphans’ court of Barbour county, for an order of sale of certain lands, named in said petition, belonging to the estate of said deceased, for division amongst the heirs of said deceased. 'This order was granted by said court on the fourth Monday of March, 1841, and commissioners were then appointed to sell said lands, as required by law. The lands were sold under this order, and purchased by appellant, Gollins, who is the plaintiff below. The sale was made on the 26th day of February, 1842, and the purchase-money paid, as recited in the deed.

The proceedings in the orphans’ court, up to the sale, seem to have been regular. The petition was for an order for sale for division amongst the heirs of the deceased, because said lands could not be equally and equitably divided amongst said heirs, without such sale. ;A11 the parties in interest were properly brought into court. The sale first made under this order was not approved by the court, when the commissioners first appointed refused to act further in the matter, and others were appointed. These latter sold the lands and reported their sale to the said orphans’ court, and on the 28th day of February, 1842, said sale was confirmed by an order of said court, by directing said commissioners to “ convey the estate so sold to the respective purchasers.” No deed seems to have been made under this order by said commissioners until the 4th day of June, 1849, when a deed was made and signed by two of the commissioners. These facts appeared from the record of the proceedings in the orphans’ court, and the deed executed by the commissioners, as above said. After the introduction of this testimony by the plaintiff below, he proved by parol that the lands sued for were the same purchased by him at said sale, and that he had paid the whole purchase-money therefor, as shown in said deed. There was much other testimony in the cause on the trial, which it is not necessary to notice in this opinion.

After the testimony on both sides was closed, the defend*ant below moved the court to exclude “ the deed introduced by tbe plaintiff, and all the documentary evidence from the county court, for the reason that the sale made by the commissioners was void; and for the further reason that the commissioners made a sale of the lands which was not confirmed, and that the court appointed other commissioners to make sale; which appointment defendant says was void.” There were other reasons also given for the invalidity of said sale, which grew out of the irregular manner in which it had been conducted. The court sustained the motion to exclude, and the plaintiff below excepted, and now brings the case to this court, and among others, this ruling of the court below for error.

The learned judge who presided on the trial in the court below, erred in excluding the deed and the record of the proceedings in the orphan’s court, for the reasons assigned in the bill of exceptions; that is, because the deed was void, and because the sale was void. The sale was not void, nor was the deed void, however irregular they may have been, if enough appeared from the record to show that the jurisdiction of the court had attached, and that the land ordered to be sold was that which was sold; that the plaintiff below was the purchaser, that the price had been paid, and that a deed had been ordered by the court to be made to the purchaser. All this appears to have been done, though in a way somewhat irregular. But such irregularities cannot be objected to in this proceeding. They can only be reached by a direct proceeding, on writ of error or appeal from the final decree on the application for the sale, and its confirmation, in the ’orphan’s court. And too great a length of time since the sale and its confirmation has now intervened, to permit any inquiry into the regularity of these orders. Above twenty years having intervened since the sale and making of the deed, they can not be now attacked and set aside for mere irregularities. Cox v. Davis, 17 Ala. 714; Doe, d. Saltonstall and Wife v. Riley & Dawson, 28 Ala. 164; Fields’ Heirs v. Goldsby, 28 Ala. 218 ; Matheson’s Heirs v. Hearin, 29 Ala. 210 ; King v. Kent’s Heirs, 29 Ala. 549; Wallace v. Hall’s Heirs. 19 Ala. 367; Wyatt’s Adm’r v. Scott, 33 Ala. 313; Worley’s Adm’r v. High’s Adm’r, 40 Ala. 171, 176 ; and Austin v. Jordan, 85 Ala. 642.

[Note by Reporter. — The appellee petitioned for a rehearing in this case, in which the foregoing opinion was delivered at a former term of the court. The argument in support of the petition did not come into the Reporter’s hands. The following response was made to the petition at the present term:]

As the other questions mooted in the assignment of errors may not again arise on a new trial, further notice of them is omitted.

The judgment of the court below is reversed, and the cauve remanded for a new trial.

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Rehearing

PETERS, J.

—The application for a rehearing in this case is based upon the ground that the sale by order of the court of probate is void. This is assumed to be so, because it is alleged that the petition for the order of sale “ does not show that the lands are in the State of Alabama. It only states the numbers of the land by section, township and range.”

The petition for the order of sale is not set out in the transcript of the record of the proceedings in the court of probate, but the order showing that the application was made, and fixing a day for the hearing of the petition, is set out in the record; and this fails to show where the land lies» except by the number of the section, township and range’ But the order for the sale itself does show that the land ordered to be sold laid in the county of Barbour, in this State. This latter order also shows that all the necessary jurisdictional facts were proven on the hearing, and considered by the court on the rendition of its final judgment. The sale was made in 1842, the purchase-money was paid, the sale confirmed, and a deed made to the purchaser. The action in this case was not brought until 1867, This was above twenty-five years afte>‘ the sale. The defect complained of was amendable, and to permit it to avoid the sale after so long a delay would be indeed “converting a court of justice into a snare.” — King v. Kent’s Heirs, 19 Ala. 542, 553; Satcher v. Satcher, 41 Ala. 26, 39. To avoid this, and to support an order of the court of probate for the sale of lands for distribution, after a lapse of twenty years, if the order is otherwise regular, it will be presumed, when the order is collaterally attacked, that there was a sufficient petition to support it.

The rehearing is therefore denied, with costs.