38 Ala. 107 | Ala. | 1861
The bill of‘exceptions purports'to set out all the evidence that was offered on the trial; and the charge of the court-was? that if the jury believed the evidence, they must find for the plaintiffs*. There was no proof, so far as the record discloses, that the defendant was in the possession oí the lafid sued for at the date of-the issuance of the writ; and as, Without-such proof, the plaintiffs were not entitled to a recovery, it follows that; the judgment must be reversed J for this-reason, if for no-other.
We have been furnished with no brief by- the oounse for the appellee; and cannot tell whether any question-was made in the court below, or was intended to be raised here, as to the validity of the sale made by the administrator under the order of the probate court. Under these circumstances, we have not thought it necessary to examine - the proceedings of the probate court, with the view of asoertainiug whether there is any well-founded objection to - the validity of the sale made under its order*
In the present case, tíre order of sale is broad enough to cover the entire real estate of the intestate. But the question is, whether the sale, as made by the administrator, was of the entire real estate, subject to the widow’s dower ■interest, or whether the land set apart for her dower, and not not simply her right of dower therein, was excepted from'the operation of the sale. The sale, as reported by the administrator, was of “the real estate-of the said Wells Tarver, deceased, (exce-ptthe loidoiv's doiver,) as described in the petition for sale,” &c.; and if we look alone to this report, as showing the extent of the sale, these words of exception might possibly be construed as simply embracing the widow’s right •of dower, and not the land set apart to her. But, when we • come to examine the deed of the administrator to the pur- ■ chaser at the sale, we find reason to suppose that the sale was not intended to include the land assigned as the widow’s dower. On this subject there is some obscurity, growing out of the confused description of the lands in the various petitions, orders, and deeds, which can doubtless be removed on another trial.
The widow’s petition for dower, and the administrator’s petition for an order of sale, both alleged that the intestate was seized of “Lot No. 17, in letter A, it being the northwest corner of said lot (No. 17), fronting two hundred feet •on Franklin street, running back east, adjoining lot No. 18, two hundred and fifteen feet, situated in the town of Lafay■.ssfcte, and the same-being a part of the north-west quarter of
Judgment reversed, and cause remanded.