48 Ala. 643 | Ala. | 1872
The lands of an estate may be sold by order of the probate court having jurisdiction of the estate, when the same can not be equitably divided amongst the heirs or devisees.' — Rev. Code, § 2221.
The application for that purpose must be made by the executor or administrator; must describe the lands accurately, and give the names of the heirs or devisees, and their places of residence; and such application must also state, if any, and which of said heirs or devisees are under tbe age of twenty-one years, or married women, or of unsound mind. — Rev. Code, § 2222.
A proceeding on such an application is, essentially, a proceeding in rem, and the jurisdiction of the court attaches, on the filing of the petition by the executor or administrator, setting forth the statutory grounds authorizing such sale; and an order of sale made on such an application will not be void for errors that may intervene in the after proceedings. Subsequent errors may render the order of sale erroneous, and liable to be reversed on appeal, but it will not be void.—King v. Kent’s Heirs, 29 Ala. 542; Satcher v. Satcher’s Adm’r, 41 Ala. 26.
A final order for the sale of the lands of a deceased person for distribution, made by a probate court on the application of the executor or administrator, can only be set aside and vacated in the same court, on the ground that it is void; not because it is erroneous. For errors in the proceedings and final order, the same may be reversed, but it can not be set aside and vacated by the court in which the order was made.—Johnson v. Johnson’s Adm’r, 40 Ala. 247; Satcher v. Satcher’s Adm’r, supra.
To determine whether the probate court decided correctly, in overruling the appellant’s motion to set aside and vacate the order of sale in this case, we must examine the petition of the administrator, and see whether its statements, properly interpreted, conferred on the said court jurisdiction to make the said order; in other words, whether it contains the jurisdictional facts required by said section 2222 of the Revised Code above referred to. It must be
We will now proceed to examine the petition in this case, in connection with the objections made to it, having reference to its sufficiency to give the court jurisdiction of the application.
The first objection of this character is, that but one of the administrators filed the petition for the sale of the lands, his co-administrator not being a party to said peti
We have found no little difficulty in coming to a satisfactory solution of this question; but a careful examination of the petition, and construing the words employed by the rule of this court, as laid down in the cases of King v. Kent’s Heirs and Satcher v. Satcher’s Adm’r, supra, that the language of the record, in such cases, should be construed most favorably for the maintainance of the jurisdiction and decree of the court, our minds are drawn to the conclusion, that it sufficiently appears, from the petition, that the lands described therein are in the county of Autauga. •
Although it is not directly so stated in the petition, yet what is said, reasonably interpreted, leads to that conclusion, and with the data therein stated it seems to us no real difficulty could exist in determining the county, as well as the particular location of the lands described in the petition. In the first place, such an application is to be made to the probate court of the county having jurisdiction of the estate. — Bev. Code, § 2221. The petition shows that the probate court of Autauga county is that court. The petitioner received his appointment as administrator from that court. The lands described in the petition consist of two tracts, or parcels; the first is described as the tract that had been assigned as dower to the widow, being a part of the south-west quarter of section eight, township sixteen, in range fourteen; metes and bounds, courses and distances are given, to distinguish the part of said quarter section that had been assigned as dower to the widow; and further, that it was bounded on lands formerly owned by William Pickett, containing seventy-five acres, and known as the Hendon tract.
The other tract is described as a quarter section, the
With the description of the lands here given, we think no serious difficulty would exist in finding the lands intended, and when found, the county itself would be known. The larger tract is a quarter section, and bounded on its four sides by lands of three named individuals; and the other tract is land assigned to the widow as dower. With the names of the individuals given, and the records of the court, both tracts could be easily identified, and the maxim is, “id cerium est quod c&rtum reddi potest.” Such a description would be sufficient in an action of ejectment, and we can see no reason why greater certainty should be required in a proceeding of this kind. This objection, therefore, can not be permitted to prevail.
The other objections are based upon defects and errors, alleged to have intervened in the proceedings after the court below had acquired jurisdiction; and by the uniform decisions of this court, such defects and errors are held not to invalidate the order of sale, or the sale made under it; consequently, the probate court committed no error in refusing to set aside and vacate either the order of sale or the sale made under said order.
The judgment is affirmed, at the costs of the appellants.
Note bx Reporter. — At a subsequent day of the term, the appellant applied for a rehearing. The application was denied at the present term, the following response being made by
The reasons for a rehearing offered by appellants refer, almost exclusively, to errors alleged to have intervened in the proceedings in the probate court,
The apparent inconsistencies in the dates in the transcript must be regarded as clerical misprisions, and can not affect the decree that has been affirmed, on such an application as the present.
The rehearing is denied, with costs.