Couch v. Campbell

6 Port. 262 | Ala. | 1838

COLLIER, C. J.

This was an action of trespass to try titles, brought by the defendants in error against the plaintiffs, in the Circuit court of Montgomery. The pleas were, “ not guilty, liberum tenementum,” and a special plea, that title was acquired by purchase of an administrator, under an order of sale, made by the County court of Montgomery.

On the trial, it appeared that the administrator of the estate of the ancestor of the defendants in error, petitioned the County court for an order to sell certain real estate of his intestate, (of which that now in controversy is a part,) upon a suggestion, that it was necessary to sell either slaves or land, in order to pay the debts of the intestate, and that the heirs would be less injured by a sale of the latter, than the former.— On the exhibition of the petition, the judge of the County court directed citations to issue, to all parties interested, to appear, &c. and shew cause, if any there was, why the land should not be sold.

At the return of the citation, an entry was made, reciting, that the parties interested had had due notice, and that they failed to shew cause as required : whereupon the court being satisfied of the truth of the al egation, that the heirs would be less injured by a sale of the land, than the negroes, ordered that the real estate described in the petition, be sold by the administrator, and due return be made thereof.

The judge of the Circuit court, in his charge to the jury, assumed, that the proceedings of the County court might be collaterally impeached, and that, unless certain facts, such as the execution of a bond, by the administrator, faithfully to account for the proceeds of the sale, &c. appeared of record, the title of' the heirs was not divested.

The only question which we need now to decide, is whether the County court had jurisdiction oí' the case stated in the petition. The second section of the statute of eighteen hundred and eighteen, entitled “an act concerning judicial proceedings,” expressly authorises the County court to proceed, on petition and citation, to order the sale of land belonging to the estate of a deceased person, when the estate, or those entitled to inherit the same, would be less inj ured by a sale of the real property, than the slaves. It is clear that the jurisdiction was put in full exercise, if not earlier, at least when the court recognised the petition and made its order for the issuance of citation. This conclusion is fully sustained by the opinion of this court, in Wyman vs Campbell; and consequently, a further examination of this case is rendered unnecessary.

The judgment is reversed and the cause is reman-.-ded.

GOLDTHWAITE, J., not sitting..