Griel v. Randolph, 108 Ala. 601

Griel v. Randolph

108 Ala. 601 | Ala. | 1895

Lead Opinion

HEAD, J.

The right of action here sought to be enforced, in the name of the commissioner, for the use of the owners of the land sold, is that which was clearly recognized by this court in Hutton v. Williams, 35 Ala. 503 ; and the measure of recovery claimed and had, is the .same as there held proper. We can add nothing to what was said in that case. It makes no difference that one of the joint owners and parties to the petition for sale, sold his interest pending the petition, to Smith, here alleged as one of the beneficiaries. That sale operated to assign to Smith his vendor’s share of the purchase money when the pending proceeding should ripen into a sale. That proceeding could only be, and was properly, prosecuted to decree, by and against the parties who owned the land when the petition was filed. The assignment by H. W. Crittenden to Smith did not concern Griel who afterwards became the purchaser *604under the decree, for the title to be acquired by him, by that purchase, was the same as if Smith had not bought Crittenden’s interest. It was, therefore, immaterial that Griel had no notice of Smith’s purchase. Nor does 'the purpose for which Smith bought the interest affect Griel. If his purpose, as suggested by counsel, was to abate the proceeding, and if he had the power to abate it, he did not do so, but suffered it to go on to decree and sale, and Griel bought. Smith’s purchase being of the entire interest of H. W. Crittenden, the court, on the distribution of the proceeds of the sale, would properly have distributed to him as assignee, the share of his assignor. He is, therefore, properly alleged as one of the beneficiaries of this action.

If an express, affirmative acceptance of Griel’s bid by the court be essential, it is not conceivable how, under the statute which controls the court in making such sales, a plainer acceptance could have been manifested. The court had no power to confirm the sale, for its terms had not been complied with. The commissioner made due report of it. The judge of the court received and marked the report “filed,” and put it upon the records of the court; the court ordered that it lie over for ten days for consideration, and the terms still not being complied with, ordered the land to be resold at Griel’s risk. The only character in which Griel was presented before the court was as the highest and best bidder at the sale. That character the court recognized and based its further decree upon it, in express terms holding him to the consequences of his failure to make good his bid. Nothing more by way of acceptance could reasonably be required.

If Griel had complied with the terms of sale, he might have been entitled to notice of any proceeding thereafter to set aside his purchase. But he did not, and thereby he took upon himself notice of all consequences which might legally result from his failure. He sent his dereliction to the court to be dealt with as legally might.

The statute does not require that the petition for a sale of lands for division among joint owners or tenants in common shall state the residence of the petitioners. Code, §§ 3253 and 3254.

Affirmed,

Rehearing

*605ON APPLICATION NOB. RE-HEARING.

HEAD, J.

Ill support of .the proposition last stated, in the foregoing opinion, that it was not necessary for the petition to set out the residence of the petitioners, in order to confer jurisdiction, we refer to what is said on the subject in the opinion filed at this, the November term, 1895, in the case of Hillens et al. v. Brinsfield, from Montgomery Probate Court.

Application for re-hearing overruled.