| Ala. | Jan 15, 1860
The jurisdictioxx of the probate court, to oi’der a sale of the personal property belonging to a decedent’s estate, is deiived solely from statute, and is special and limited; consequently, that court has xxo jurisdiction to make such an order, except on an applica
Were the question a new one, I might perhaps be inclined to hold that, in reference to the control it exercises over the sale of personal property of decedents, the probate court is a court of general, and not one of special and limited jurisdiction; and consequently, that such orders of sale as those set out in the record, bearing date the 6th and 9th February, 1854, could not be pronounced void, when presented collaterally. But the question is not a new one. So far from this being so, perhaps no single question has ever undergone a more thorough examination, or been the topic of abler or more protracted discussion in this court. In Wyatt v. Rambo, (29 Ala. 510" court="Ala." date_filed="1857-01-15" href="https://app.midpage.ai/document/wyatts-admr-v-rambo-6505893?utm_source=webapp" opinion_id="6505893">29 Ala. 510,) the whole subject was most elaborately considered; and the court announced, in substance, the principles already stated. In that case, after the delivery of the first opinion, a rehearing was ordered, and the cause held under advisement until the succeeding term. The deliberate examination, which, on the rehearing, the court as then constituted gave the question, only served to confirm the judges sitting in the case, in the views expressed in the first opinion ; and that opinion was, at the succeeding term, adhered to. The same question again came before the court in Ikelheimer v. Chapman, (32 Ala. 676,) and was again the subject of a discussion, which, it may be truly said, exhausted the merits of the controversy. On that occasion, the majority of the court declared their decided approval of the principles settled in Wyatt v.
2. The plaintiffs, having, shown the prior possession of their intestate, had made out a prima-facie case; and the defendant was, therefore, not at liberty to defeat a recovery by showing merely an outstanding title in another, with which he had no connection. — Sims v. Boynton, 32 Ala. 361. Consequently, there was no error in the exclusion of the evidence offered by the defendant.
3. The sale of the slave by Beene, being without authority, was a conversion; and the taking and retention of the property by the defendant was equally a conversion on his part. The defendant’s possession was, therefore, from the beginning, an unlawful possession. "Whenever a demand is necessary to change a lawful possession into a wrongful detention, as to terminate abailment, no damages can be recovered, except from the service of the writ, unless a demand has been made. But, where the possession is unlawful, a demand is unnecessary, and the plaintiff is entitled to recover damages for the wrongful detention ; and “if a party, as in this case, is placed in a condition in which it is impossible to restore the thing to the owner, he is still responsible for all the consequences of a possession which commenced unlawfully.” — Lawson v. Lay, 24 Ala. 188; Gardner v. Boothe, 31 Ala. 190. The proof showed that the defendant’s possession commenced ’on the 30th June, 1855 ; and the jury were properly instructed to ^compute the damages for the detention from that time.
Judgment affirmed.