Doe ex dem. Saltonstall v. Riley

28 Ala. 164 | Ala. | 1856

CHILTON, C. J.

The main points involved in this case have undergone very thorough investigation, and we therefore deem it unnecessary to repeat what has been heretofore said by this court with reference to them. Upon a careful inspection of the record, and after a review of the adjudged cases, most of which have been collated with much ability and research by the respective counsel, we have attained the following conclusions:

1. That the record from the orphans’ court of Mobile county affirmatively shows that said court had jurisdiction to mate the order for the sale of the land of Alvan Robeshaw, deceased.

2. That having jurisdiction, and its action being in the nature of proceedings in rem, and the land having been sold by the order of the court, the sale approved by it, and a deed of conveyance executed by the commissioners in accordance with its mandate, such proceedings, though they may abound with errors for which an appellate court would reverse, are nevertheless binding and conclusive until they, are vacated. They cannot be collaterally called in question.

3. Although two petitions for the sale of the intestate’s land appear in the record, the orphans’ court might well have regarded one as amendatory of the other, and have treated them both as constituting but- one application. And although recitals in the decrees- of .courts of special, limited powers cannot give jurisdiction; yet, when the jurisdiction otherwise .appears, as in this case by the exhibition of the petitions and the action of the court thereon, we may'look to the decreé, to se.e whether its action is predicated upon the petitions separately, or as constituting but one .application. In this case, the decree, or order of salé, shows that both petitions were acted upon conjunctively; which, we have seen', the court might well do. That the petition may be identified by the entry, see 1 Ala. Rep. 38, and 4 ib., 388, which are analogous in principle, the courts in each case exercising a limited, .special jurisdiction quoad the subject-matter.

4. We think there was no. error in admitting proof of the death of Duval, as a jurisdictional fact, upon which the orphans’ court acted in the appointment of the subsequent administrator. If it'was erroneous, however, we should hold that it was not prejudicial to the appellant, since Duval was invested with the office of administrator, if installed at all, in virtue of his office as sheriff of Mobile county. As sheriff, he was the executive officer of said probate court; and the court must be presumed judicially to have known when his time expired, and when the office was vacated by death. The matter, therefore, which was shown by the objectionable proof,- conceding it to be objectionable, being in contemplation of law within the knowledge of the court, it'is more consonant with reason and law to presume the court acted upon its own knowledge that the office was vacant by death of the incumbent, or by the expiration of his official' term, than thát it should attempt to depose one administrator by the appointment of another to the same office without otherwise removing the former.

5. It follows from what we have said, that the court properly refused the. several charges, making the case turn upon certain irregularities alleged to have intervened in the orphans’ court proceedings. The alleged want of proper notice of forty days by citation to the heirs; the fact that the record fails tó show that the guardian ad litem accepted the appointment, and the absence of an answer by him denying the allegations of the petition; the absence of proof of proper notice of the time and place of sale by the commissioners, as well as the action of the court in the appointment of Lane,— are mere irregularities, not affecting the jurisdiction of the court over the subject-matter, and consequently not such as’ render the sale void. They may furnish good reasons for setting it aside, or for reversing the proceedings in a revising court, but cannot be allowed to vacate it in this collateral proceeding. Were the law otherwise, there would be no security in such sales, and estates would be almost daily sacrificed for want of bidders rash enough to invest their means in such hazardous purchases. — 6 Por. Rep. 219; ib. 249; ib. 262; 1 Ala. Rep. 475-481; ib. 730; 6 ib. 411-414; 7 ib. 855; 10 ib. 172-175; ib. 722; 17 ib. 714; 16 ib. 281, and cases there cited.

6. The deed from the commissioners to Bates was properly admitted in evidence, as a link in the defendant’s chain of title. If it embraced any portion of the land ordered to be sold, it was, as to that portion, proper; and the objection being general, it was properly overruled.

‘ 7. There'was no.t, in our. opinion, such indefiniteness of description of the land sold, or such discrepancy between the deed of conveyance, the report of sale, the order to the commissioners, and the petition, as will vacate the proceedings. Although the land is described inartificially, and somewhat differently, in each attempt at the description’of it upon the record; still, we think, enough appears to enable the court to see that the land sold and conveyed by the commissioners was comprehended in the description as contained in the application by the administrator for the sale, and in the order of the court awarding or directing such sale. This appearing, it was competent, by parol proof, to fix the boundaries of the tract. or portion sold, according •to the data furnished by the deed, so as to identify the land therein described. There was, therefore, no error in admitting the testimony of Krebs. Indeed he proves what the report of the commissioners already set forth. — viz., that the sale was made upon the land.

8. The appellees’ counsel contends, that the streets, being the most durable monuments, must govern in the description. This depends on circumstances.- If the streets are well defined, and designated by some natural or artificial monument, they would doubtless control; but if, in the infancy of a town or city, they are not defined, and are but portions of land dedicated to public use, as described upon some chart or plan of the town or city, requiring themselves to be located or fixed, they would furnish very uncertain guides in arriving at the boundary of other lands.

But, concede that the streets mentioned in the descriptions given of this land must govern, and that courses and distances must yield to them, as in case of permanent monuments; the appellants are placed in no better condition; for, if the tracts are co-terminous, divided by a line running north and south, it is clear that, beginning on Claiborne street in the east, and running to Hamilton street on the west, bounding the land south by Dauphin street, the land sold is embraced within that boundary. That the commissioners may have left unsold the portion lying, between Claiborne and Franklin-streets, would not vitiate the sale of the land between Hamilton and Franklin streets. The first petition set out in the record describes the land as extending from Franklin to Hamilton, bounded south by Dauphin, and north by lands of Moore and Farnsworth. This is the land sold and now claimed by plaintiffs. The only confusión in the description here given is in describing the lands as consisting of three lots, and bounding it on the west by the land of Robert Carr Lane as well as Hamilton street. But, if the streets control, then this petition sufficiently describes the land, aided by the parol proof to fix the boundary of the lands of co-terminous proprietors at the north. The second petition, or that immediately following the other in the record, is for the sale of six lots, bounded east by Claiborne, south by Dauphin, west by three lots claimed by R. C. Lane; and also these three last lots, which extend west to Hamilton street. The order of sale extends from Claiborne to Hamilton, and is for six lots, three of them being in possession of the administrator, and bounded on the west by Hamilton street. The commissioners’ report shows the sale upon the premises, of six lots, commencing at Hamilton street and extending east, being co-terminous. This would bring the eastern boundary to Franklin, which they evidently designate, through mistake, Claiborne. But this can make no difference, since the identity is sufficiently shown by the number of the co-terminous lots. If, however, this means of identifying them must yield to the call for the street, Claiborne, why, then, it conforms to the order in the sale of the whole of the land. That they failed to convey the whole,-and conveyed only the six lots between Hamilton and Franklin, leaving to, the heirs the other six lots between Franklin and Claiborne, is certainly no valid ground of objection on the part of the heirs. So that, in any aspect in which the apparent discrepancies may be viewed, the description as respects the land actually sold, and that claimed by the defendants, is sufficient to sustain the proceedings. The data are sufficiently furnished to identify the land, and there is no actual want of conformity in the proceedings as to this particular land, whatever may be-said as to the six lots east of Franklin street between that and Claiborne.

9. We are satisfied that the court might have well instructed the jury, that under the proof, the whole of which is set out in the bill of exceptions, and about which there was no controversy, the title to the land sued for was in the defendants. ' Such being the case, it were needless to criticise the several charges; the rule being, that where the record affirmatively shows that the plaintiff is not entitled to recover, the court will not reverse for an erroneous charge; nor, a fortiori, for refusing to charge. — See 3 Ala. Rep. 599; 6 ib. 631; 8 ib. 737; 9 Por. 403. In such case, the plaintiffs have sustained no injury — See cases collected in Reavis’Digest, p. 319, § 71.

It may be that some of the charges given referred to the jury matters of law, as to the construction to be put upon the orphans’ court proceedings; but the jury, by their verdict, found it as the court should have declared it, and so the plaintiffs were not injured. — 8 Ala. Rep. 532.

There is no error in the record of which the appellant can complain. Let the judgment be -affirmed. •