Field's Heirs v. Goldsby

28 Ala. 218 | Ala. | 1856

G-OLDTHWAITE, C. J.

The principal objection which has been urged against the proceedings in the orphans’ court, is, that the petition filed by the administrator does not particularly set forth the heirs who are of full age, which, it is insisted, is a jurisdictional fact essential to the exercise of the power to decree a sale of lands under the act of 1822, (Clay's Digest, 224, § 16,) when the sale is necessary to be made in order to make an equal division among the heirs.

In the case of Duval v. McLosky, 1 Ala. 708, an attempt was made collaterally to impeach the proceedings of the orphans’ court, directing a sale of land, under the same statute, for the payment of debts of the intestate. The record in that case contained no petition for the sale of the particular lands in question, but simply an order of court reciting that the ad-ministra tor had presented a petition in court, praying an order for the sale of the lands described therein, on the ground that the personal estate, and the sales of lands made under a previous order, were not sufficient to pay the debts of the intestate; but there was no recital as to the names of the heirs, their ages, &c. The court held, that the recital in the record showed that a petition had been filed, which described the lands sought to be sold, and disclosed the statutory ground on which the sale was sought; that the jurisdiction of the court attached upon a petition containing these allegations; and that the omission to state the names of the heirs, their ages, &c., was simply an irregularity-which could not prejudice the title of a purchaser, under the decree for a sale. — See, also, Bishop v. Hampton, 15 Ala. 761.

In Duval v. The P. & M. Bank, 10 Ala. 636, so far as we are able to judge from the statement of the case, the same question arose, and the doctrine in the former case was reapplied.

It is true that, in the cases cited, the object of the sale was to pay debts; but that cannot affect the principle. The statute makes the same requirements in each case, and if they are not essential to the exercise of the power of the court in the one case, they cannot be in the other. Could we regard the question as an open one, we might arrive at a different conclusion from that which was attained in Duval v. McLosky, supra; but after it has been recognized by a- subsequent decision, and has probably been acted upon as a practical rule of property, we do not feel at liberty to depart from it.

The jurisdiction of the orphans’ court having attached, by the recognition of the petition, the failure to issue a citation to the resident heirs, or to make publication as to the nonresidents, or the failure on the part of the guardian of the infant defendants to deny the allegations of the petition, and the want of proof as to the existence of the alleged ground of sale by depositions, are all .mere irregularities; and, although either of them might be sufficient to reverse the proceedings, have no weight in a collateral attack. — Perkins v. Winter, 7 Ala. 855.

The only remaining question is, whether the proceedings are void by reason of the failure to give the notice of the sale required by the act of 1806. If it was conceded that the authority of the administrator to sell under the decree, was in the nature of a power, and required the observance of every formality the statute might impose; still, we think, the statute referred to has no application to sales made under an order of court by commissioners. Prior to the act of 1822, under which these proceedings were had, it was the executor or administrator who was ordered to sell, and who conducted the sale; and it is only to cases of this character that the terms of the statute are applicable. Here, however, it was not the administrator who was ordered to sell, but this power was directed to be exercised by commissioners, who are but the ministerial agents of the court; and the test of its correctness, so far as a compliance with the order of sale is concerned, is its ratification by the court. — Jennings v. Jenkins, 9 Ala. 285.

Judgment affirmed.