105 Ala. 615 | Ala. | 1894
This was a statutory real action for the recovery of two parcels of land situate in the city of Eufaula, in which the appellant was plaintiff and the appellee was defendant. The facts are that the legal estate in the premises at one time resided in the appellant. In December, 1881, the mother and guardian of appellant, who was then of the age of ten years, in the capacity of guardian, presented to the judge of the court of probate of the county of Barbour, in which county she and the appellant then resided, and in which county the premises were then situate, h petition in writing verified by affidavit, praying an order authorizing the sale of the premises, and for the reinvestment of the purchase money. The material allegations of the petition were that the premises were a residence lot in the city of Eufaula, which could be made a source of income only by renting; that it was expensive to keep them in repair ; that owing to their location, and the nature of the property, the income they would yield would be but a small percentage of their actual value, not amounting to legal
The statute, under which the proceedings were had’, provided: ‘‘For good cause shown, the judge of probate may authorize the sale of personal and real property of the ward, in such manner as he may direct; and direct its reinvestment in bonds, notes or bills of exchange, at interest on mortgage security, or in other property, in the name of the ward ; but no sale of real estate must be had on less than forty days notice, which notice must: be published once a w'eek for three successive weeks in a newspaper nearest the place where the sale is to be made ; and returns of sales must be made and confirmed as in sales of land by administrators.''’ — Code, 1876, § 2785. The jurisdiction conferred on the judge of probate could not be called into exercise, without an application disclosing good cause for the sale of property real or personal. The statute is part of a system regulating the relation of guardian and ward, declaring the duties of the guardian, and committing to him the management and control of the ward’s estate. He is the proper party to make the application. The application must have shown that the necessities or interests of the ward required the sale ; and when this was shown, the jurisdiction of the jpdge of probate attached.
It is not controverted that the averments of- the petition were sufficient to call into exercise the jurisdiction of the judge, necessitating that lie should act and move in its exercise. The proposition is, that he could not proceed to an order of sale without notice to the ward, and without the appointment of a guardian ad litem to represent her. The proceeding the statute authorizes, has in it no element of an adversary suit in personam. All
We must not be understood as assenting to the proposition, that notice to the ward, or the appointment of a guardian ad litem for her, was essential to the regularity of the proceeding. The statute makes no such requirement, and for the obvious reason, as we have said, that an adversary proceeding in personam is not contemplated. The application for the sale made by the guardian in her representative capacity, not in any individual right would seem to be but the application of the ward speak
We find no error in the judgment, and it must be affirmed.