49 Ala. 137 | Ala. | 1873
—On the 4th of December, 1861, Harris and Purifoy were appointed administrators of the estate of Hartwell B. Green. In April, 1862, they sold the lands of the estate under an order of the Probate Court. In October, 1862, John A. Green was appointed administrator de bonis non, Harris having died, and Purifoy “ being absent from the State in the army of the Confederate States.” No record appears of the formal removal of Purifoy. While acting as administrator, Green executed a deed to the purchaser, under whom the appellee claims. In 1867, the appointment of Green was set aside as null and void, on the ground that Purifoy had been only temporarily absent from the State, and “ had not been released in any manner from said administration.” In 1869, Purifoy, who had been considered the administrator since the annulment of Green’s letters, was removed, and the appellant appointed. The said appellant now sues the appellee (Scarborough) in ejectment to recover the land in his possession. On the trial, the court excluded as testimony the records of the Probate Court in reference to the appointment of the several administrators, and other orders pertaining to the administration, on the ground that nothing which had transpired in a court of the insurgent state government could be proved in the present lawful courts of the State, either by a transcript or by the original books and papers of such court. The record of the appointment of the plaintiff as administrator de bonis non, in 1869, was also rejected, on the ground that, as it was apparent there had been no administration in chief, the Probate Court had no jurisdiction to appoint such an administrator.
.As a' matter of fact, it is well known, that the records of the courts in this State, under the insurgent domination, passed into the keeping of a corresponding officer of the present courts. They are, therefore, to be proved in the same manner as the records of the present courts. If any doubt of this existed, the practice would be warranted by Rev. Code, § 2695. The acts of those courts are not void. Ryland v. Grriffin, 45 Ala. 688. An order of the Probate Court granting letters of administration de bonis non cannot be held void in a collateral proceeding, because it does not show the appointment and removal, resignation, or death, of the prior administrator. J. Kelheimer v. Chapman, 32 Ala. 676. The vendee of the land could not have resisted the suit of John A. Green as administrator for the collection of the purchase money, and, therefore, he was at liberty to pay it. Green was an administrator defacto. The subsequent revocation or setting aside of his letters, and the appointment of another administrator, cannot invalidate the payment. Allen v. Dundas, 3 T. R. 125 ; 2 Phil. Ev. 76, and note 2. The deed from Green was properly admitted in evidence.
The judgment is reversed, and the cause remanded.
