Evans v. Mathews

8 Ala. 99 | Ala. | 1845

COLLIER, C. J.

The supposed irregularities which have been insisted on by the plaintiff in error, may be thus stated: 1. The evidence on which the decree of the Orphans’ Court was founded, is ex parte, not being assented to by all the heirs. 2. The record does not show that the heirs residing in the county had personal notice that the petition-was filed. 3. The-fh-st report of a sale, which was made by the administrator-, should have been received by the Court, and he should not have been committed until he made a second, on which the final order was made. 4.. The intestate, or his heirs, had no title to the land that could be sold, under a decree of the Orphans’ Court; and, 5. Instead of appointing a guardian for Carolina Evans, she should have been called on to select one herself.

It must be observed, that the administrator who was the actor in the proceedings in the Orphans’ Court, is here complaining, and it is incumbent upon him to show, not only that errors have there been committed, but that they are such as prejudice him, or at least affect the title, which the defendant acquired by his purchase. Assuming this as a postulate, and neither the first, second or fifth points, conceding them to be well founded in fact, and as abstract legal propositions, indisputable, can avail the plaintiff. We have often hold, that if in an application for the sale of the real estate of a decedent, the jurisdiction of the Orphans’ Court is established, a decree rendered, and the proceedings consequent thereupon, regular, the purchaser’s title will not be divested, although the decree should be reversed. And the same result will follow, although the heirs may not have been served with a notice of the petition, and the petitioner has failed to comply with the directions of the law, as to matters to be observed subsequent to the sale. Further, the reversal of the decree for error in the record, only entitles the successful party to the purchase money, but the purchaser shall hold the property. [Wyman, et al. v. Campbell, et al. 6 Porter’s Rep. 219; Perkins Ex’rs. et al. v. Winter’s adm’rx, et al. 7 Ala. Rep. 855.] This being the case, the defendant has no interest in litigating these points; no matter what may be the judgment of the law upon them, the plaintiff can recover nothing of him, or defeat his title, unless the jurisdiction of the Orphans’ Court, could be successfully assailed. This has not been attempted, and our impression, from an inspection of the record, is, that such an effort would be vain.

It might also be answered, to the objections we are considering, that if they are errors, they are attributable to the plaintiff— it was his duty to have prevented them, by conducting the proceedings with regularity, and he cannot be permitted to urge them, to annul a decree rendered at his own instance*

If it were granted that the report first made by the plaintiff, correctly stated the facts, and authorized the final order, and that his commitment until he made a second, was oppressive, and irregular, and still it would furnish no ground for a 2-eversal of the decree. It was a matter occurring post factum, and if the plaintiff objected to it, he should have interposed an objection while it was in fieri. As the result was legal, if the process by which it was obtained were set aside, the purchaser would still be secure in his title.

In respect to the fourth point made by the plaintiff in error, without stopping to inquire, whether, if available under any circumstances, he conld urge it, we need only remark that in Perkins’ Ex. et al. v. Winter’s Adm’rx, et al., (supra,) we held, an equitable title could be sold under a decree of the Orphans’ Court, and the purchaser would stand in the same predicament as to the title, as the heirs did. We are, however, by no means certain, that the title of the intestate was not legal.

This view is decisive of the case, and the decree of the Orphans’ Court, is affirmed, so far as the writ of error in the present case could present it for revision.

In the transcript, there is a copy of a bond executed by all the heirs of the intestate, including the administrator, reciting that the writ of error was sued out by them, and conditioned for its prosecution, &c. If the writ of error was such as the bond recites, the result would be such as announced, and it is therefore unnecessary to inquire whether the writ might not be amended so as to make it' conform to the bond.