Doe ex dem. Hudgens v. Jackson, 51 Ala. 514

51 Ala. 514 | Ala. | 1874

B. F. SAFFOLD, J.

—In this action, the issue is, whether the title to the land was divested out of - the plaintiff, by a sale of it made by his guardian, under an order by the probate court, and vested in the defendant as the purchaser. The petition for the sale is not set out, but the orders in reference to it recite, as its jurisdictional allegation, that it would be to the interest of the minor to sell the land, and invest the proceeds in personal estate, or on loan. It is contended for the plaintiff, that the property was not sufficiently described in the petition, on account of the omission of the township and range, or other more definite location, although the section and its proper subdivisions, and its situation in Montgomery county, are stated. Another objection, made to the validity of the sale, is, that three weeks’ public notice, instead of forty days, was ordered.

The bill of exceptions speaks of a conveyance made to the defendant by the guardian, and refers to an exhibit of the proceedings in the probate court as showing it. The exhibit shows the sale, to the defendant, and its confirmation, and a report of his having paid the purchase-money. But it contains no order to make titles; and no deed from the guardian is found in the transcript.

1. It was very clearly decided in Bonner v. Greenlee (6 Ala. 411), that the title of the heir-in-law is not divested by an administrator’s sale, without a decree directing the title to be conveyed, and an actual conveyance. The guardian’s authority over the real estate of his ward is no greater in this respect than an administrator’s. A purchaser of land cannot defeat ejectment by his vendor, who retained the title, notwithstanding his payment of the entire purchase-money. Collins v. Robinson, 33 Ala. 91. Without regard to the equity of the case, the legal title must control the judgment in this action. It was not proved to have passed out of the plaintiff.

2. The averments of the petition, of the ownership and situation of the land in Montgomery county, gave jurisdiction to the court having charge of the guardianship. No mistake was made in the land sold, as appears from the report of the sale. The notice given of the sale was a mere irregularity. Satcher v. Satcher, 41 Ala. 26; R. C. § 2436.

The judgment is reversed, and the cause remanded.