| Ala. | Jan 15, 1872
Tbis is an appeal from a final order of tbe court of probate of Butler county confirming a sale of land made by an administrator for tbe payment of tbe debts of tbe deceased. Tbe sale was made under authority of a decree of said court of probate, on the 30th of December, 1867, but tbe report of tbe sale, if made, was not acted on by tbe court until tbe 10th day of March, 1871, when its confirmation was contested by tbe hebs and distributees of tbe decedent. Tbe proof shows tbat at tbe time of tbe sale, tbe market value of tbe lands was f>150. Tbe court vacated tbe sale on account of tbe inadequacy of tbe price bid at tbe sale by tbe purchaser, but afterwards permitted tbe purchaser, who was in open court, to increase Ms bid from one hundred and twenty-five dollars to tbe sum of one hundred and fifty dollars, wMcb was paid to tbe administrator, and tbe sale was confirmed, These facts are introduced into tbe proceedings in the court below by way of an amended report of tbe sale. But tbe amendment made in tbis manner was objected to by tbe contestants. The contestants in tbe court below bring tbe case here by appeal, and assign the order and proceedings on tbe confirmation of tbe sale as error.
There is a motion in tbis court made by tbe appellee to dismiss tbe appeal. Tbis motion seems to be founded upon tbe supposition tbat tbe appeal is barred by tbe limitation of twenty days, and upon tbe fact tbat Long, tbe purchaser of tbe land at tbe sale -which was confirmed, is
The next question presented by the assignment of errors, which can arise on this appeal in this court, is the regularity of the final order confirming the sale in the court below. When such a sale is made and reported as required by law, it is1 made the duty of the court to examine the proceedings touching the same, and “he may examine witnesses in relation thereto.” And “if upon such examination the court is satisfied that the sale was not fairly conducted, or that the amount for which the land, or any portion of the same, sold, was greatly disproportionate to the real value, the court may vacate such sale, either in whole or in part.” — Rev. Code, § 2092. If the sale is vacated in whole or in part, the court must direct another sale to be had, in like manner that was required in the first sale. — Rev. Code, § 2094. But if the sale has been fairly
If, then, the original sale is vacated, or is such an one as the court refuses to confirm on account of the inadequacy of the price offered at the bidding, as was the ease in this instance, the court should order a re-sale, as the statute requires. Here this was not done, but upon the refusal of the court to confirm the sale, because of the disproportionate value of the price offered at the sale, the purchaser was permitted to increase his bid from one hundred and twenty-five dollars to one hundred and fifty dollars. This increase of price was accepted by the court in lieu of a re-sale, and the first sale was confirmed, against the objection of the contestants in the court below. For such a procedure the court of probate had no authority. The law forbids it, by prescribing a different one. It was a sale forced upon the creditors, the heirs and distributees, which had not been made in a manner sanctioned by law. Such a departure from the plain words of the statute can not be derived from any rational construction that may be put upon it, and the court of probate has only statutory powers. Its jurisdiction is confined to the narrow limits of a power to confirm the sale, or to vacate it in whole or in part, and to order another sale. It ends in one of these resulte. If it goes beyond this, it is an assumption of power not authorized by law. It is a judicial usurpation, and a disregard of a positive legal enactment that can not safely be sustained. And the rule, of error without injury, does not apply to such a ease. — Miller v. Hampton, Adm’r, 37 Ala. 342" court="Ala." date_filed="1861-01-15" href="https://app.midpage.ai/document/miller-v-hampton-6506891?utm_source=webapp" opinion_id="6506891">37 Ala. 342. After refusing to sanction the first sale, the court of probate should have ordered a re-sale, as required by the statute in such case made and provided.
The order confirming the sale in the court below, from which this appeal is taken to this court, is reversed and set, aside, and the court below will order another sale as required by law. The appellee, said John Gamble, administrator of the estate of J. J. Gardner, deceased, will pay the costs of this appeal in this court and in the court below,