69 Ala. 324 | Ala. | 1881
The contest in the present suit arises out of conflicting claims to the interest of H. O. McRae in the real estate of his deceased mother, Mrs. Josephine McRae. She left a will, which was admitted to probate, but under a written agreement entered into between the devisees and certain of the heirs, the estate was finally partitioned and distributed, in some respects different from the provisions of the will. No question is here raised as to the construction of Mrs. McRae’s will, the proceedings by which its administration was carried into the Chancery Court, nor as to the correctness of the partition and distribution therein made. As we have said, the present contention is over the share of the lands partitioned to Henry O. McRae. Llis allotment fell entirely in Marengo county.
Mrs. McRae’s last residence and administration were in Hale county. Pier will, dated in 1869, was admitted to probate in March, 1870, and an administrator with the will annexed then appointed. In April, 1873, the bill, which is the foundation of the present proceedings, was filed, and in December, 1874, a receiver was appointed, the entire property of the estate, real and personal, placed in his hands, and the administration removed into the Chancery Court, in which all the after proceedings of the administration were had. The conflicting claims to H. C. McRae’s part of the land arise as follows:
Charles W._ Collins claims under a writing, which he sets up as a mortgage. It assumes to convey to Collins all right, title and interest of H. C. McRae in the estate, real and personal, of
“Witness my hand and seal, this 23d day of January, 1872.,
I-I. C. McRae, [l. s.]
“I, Sophia McRae, wife of the said PI. O. McRae, hereby join in the execution of the foregoing conveyance, in token that I relinquish all claim of dower in said premises to said Collins.. Witness my hand and seal, this 23d day of January, 1872.
S. J. McRae, [n.s.]
“Sworn to and subscribed before me, this 9th day of February, 1872.
Petek Lydon,
Justice of the Peace, Hale Co., Ala.”
The foregoing contains all that is shown by the paper, there-being neither subscribing witness, nor certificate of acknowledgment. This paper was filed for record in Hale Probate Court on the 14th February, 1872, and was soon afterwards recorded^ It was filed for record and recorded in Marengo Probate CourNovember 23d, 1877. On the 2d day of April, 1877, the said Collins filed his petition in said administration cause, setting up his said alleged mortgage, and, without asking to be made a. party to the suit, prayed that the said mortgage be foreclosed,, and the said interest of the said II. C. McRae be applied to the payment of his said claim. He made no one party defendant, to his petition, prayed no process, and none was issued or served.. The prayer was, that the court “make all such necessary orders and decrees in the settlement and distribution of the said estate of Josephine McRae, deceased, as shall secure to petitioner the enforcement of his claim against the share of the said Henry O. McRae, and that the amount to which he is entitled, or so much thereof as may be necessary to .pay said note may be decreed to petitioner, and paid to him on the settlement of said estate.”'
W. W. Hugger’s claim is as follows: On the 28th of March,. 1874, he recovered a judgment in Hale Circuit Court against. Henry O. McRae for the sum of $170.40 and costs of suit; and soon afterwards an execution was issued on said judgment,, placed in the hands of. the sheriff of Hale county, and by him returned no property found. On the 9th day of October, 1877,. an alias execution was issued on said judgment, which was placed in the hands of the sheriff of Marengo county, 15th November, 1877, and was on that day levied on II. C. McRae’s interest in that part of the lands of Josephine McRae, deceased, which lie in Marengo county. Having advertised the same, the sheriff of Marengo county sold said interest on the 7th day of January,, 1878, and W. W. Hugger became the purchaser, and received the sheriff’s deed therefor, dated April 1st, 1878. An execu
On the 2d day of December, 1879, Henry O. McBae, through counsel, put in a joint answer to the two petitions by Collins and Dugger, in which he admitted “that he and his wife executed the said mortgage to O. W. Collins in the presence of Beter Lydon, J] P., who then and there subscribed his name as shown by said, mortgage, and that [the] mortgage debt remains due and unpaid.” He claimed that Dugger’s purchases at sheriffs’ sales were inoperative and void, because the property was then in the hands of the receiver appointed by the Chancery Court.
Said administration cause came before the chancellor for final hearing and for distribution, and he rendered his decree, October 30th, 1879. Among other matters, he decreed and ordered that the register of the court make partition of the lands among those entitled under the will of Mrs. Josephine McBae and the written agreement of the parties, he, the chancellor, determining and decreeing the number of shares into which the lands-should be divided, and the persons who should take those shares,, as first takers. To IT. C. McBae was allotted one share, but-this was to remain subject to the rights and claims of his creditors, to be settled and determined by future decree. The register made his report of partition, which was confirmed by the-court, December 2d, 1879. By that report and confirmation,, there was allotted to IT. C. McBae the west half of the west; half of section 24, township 18, range 3 east — about 160 acres— lying in Marengo county.
The controversy over the conflicting claims of Collins and. Dugger to the share allotted to II. C. McBae, was then submitted to the chancellor on their several petitions. For Collins,.
There are -several grounds on which the decree of the chancellor must be reversed. The paper called a mortgage is without a subscribing witness, and without any certificate of acknowledgment. The certificate of Lydon, the justice, is in no sense a certificate of acknowledgment. In its present form, and in the present state of the proof, that paper must be treated as if that certificate were not upon it. Aside from its fatal defects of substance, it bears date seventeen days after the date of the signatures to the paper; a strong circumstance to show that his certificate furnishes no evidence that the paper was •signed in his presence. Being without subscribing witnesses, and without a certificate of acknowledgment, such as the law can recognize, the paper is void as an instrument conveying any interest in real estate.— Wilson v. Glenn, 62 Ala. 28; Harrison v. Simons, 55 Ala. 510; Lord v. Folmar, 57 Ala. 615.
Again. To the present controversy Dugger is a material, and very important party. The paper called a mortgage is not self-proving. To be so, it must have been properly acknowledged and certified, and recorded in Marengo county within twelve months after its execution. Neither of these essentials was observed in this case. — Harrison v. Simons, 55 Ala. 510; Sharpe v. Orme, 61 Ala. 263. Now, while the admission made by II. C. McRae of the due execution and attestation of the instrument may have been sufficient as against him, it’was no evidence whatever against Dugger; and the chancellor, therefore, had no evidence whatever, as against him, Dugger, that the paper was executed.
A further view. The certificate of the justice, “sworn to and subscribed before me this 9th day of Feb’y, 1872, Peter Ly•don, Justice of the Peace, Hale Co., Ala.” is appended to the
The appellant, Dugger, makes out a clear right to the land, if his purchase at sheriff’s sale is not, under the circumstances, void. The specific objection to the validity of that sale is, that the land was then in the hands of a receiver appointed by the Chancery Court — was constructively in the custody of the court— and that no action could be taken, or suit brought, affecting the right or title to the property, without first obtaining the permission of the court therefor; and such permission was not obtained. The foundation of the original bill in this cause is the alleged want of diligence and activity of the administrator with the will annexed, in the conduct of the administration, growing out of his failing health, and failure to carry out the intention of the testatrix, as expressed -in the will. The result of the suit was the appointment of a receiver, and a transfer to him of all the property, effects, powers and functions of the administration. He became quasi administrator, and administered the estate under the control and direction of the Chancery Court. The will made such disposition of the projjerty, as that, until the final decree, it could not be known with any proximate certainty, to what extent the property, real and personal, would be consumed in the payment of debts, pecuniary legacies, and the charges the will fastened on the estate. If any thing should be left for partition or distribution, its value could not be known, nor could any safe estimate be made of the value of the respect-' ive shares that would be allotted to the several claimants. This value might be unequal by reason of partial distribution, if for no other cause. If the land, or a part of it was saved for division, it could not be affirmed it was susceptible of equitable partition, without a sale and conversion of it into money. Nor, if partition should be ordered and made, could it be known whether H. C. McRae’s share would fall in Hale or Marengo county. Now, the possession and control of the entire estate, real and personal, were placed in the hands of the receiver, or rather, taken charge-of by the Chancery Court, to be preserved and administered, until time should solve these problems, and point out the proper disposition to be made of the assets. In the incertitude which then enveloped the estate, it requires no argument to show that any purchase of H. C. McRae’s interest would be the merest conceivable speculation. If the sale and purchase were made as of real estate, the estate ■
The possession of the receiver is the possession of the court. “When such a receiver is in possession under the process or authority of the court, in execution of a decree, or decretal order, his possession is not to be disturbed, even by an ejectment under an adverse title, without the leave of the court. For his possession is deemed the possession of the court; and the court will not permit itself to be made a suitor in a court of law.” 2 Story’s Ecp Jur. § 833 a. “So extremely jealous are courts of equity of any interference, pendente lite, with the possession of their receivers, that they will not ordinarily permit property which is the subject of the receivership to be sold on execution. And when ,a sheriff has levied upon property in the hands of a receiver, equity will not interpose by an injunction in behalf of the sheriff, to restrain an action at law against him for such interference. The proper remedy for a judgment creditor, who desires to question the receiver’s right to the property, is to apply to the court appointing him, to have the property released from the receiver’s custody, in order.that he may proceed against it under his judgment. Since to permit the*property,, while in custody of thé receiver, to be levied upon and sold under the process of another court, would at once give rise to a conflict of jurisdiction, and would seriously interfere with and impair the receiver’s right to the' management of the property under his appointment.” — High, on Receivers, § 141. See also 5 Wait’s Actions and Def. 354; Angel v. Smith, 9 Ves. 335; Fessenden v. Woods, 3 Bosw. 550; Rorer on Jud. Sales, § 709; Parker v. Browning, 8 Paige, 388; Field v. Jones, 11 Ga. 413; Wiswall v. Sampson, 14 How. U. S. 52, 65.
It is urged for appellant that'it is only the possession of the
The result of what we have said is, that neither Collins nor Rugger has shown a right to relief under their several petitions.
Reversed and remanded.