Kent v. Mansel

101 Ala. 334 | Ala. | 1893

HARALSON, J.

—Under Abernathy v. O’Rielly, 90 Ala. 495, 7 So. Rep. 919, the petition in this case would be insufficient to support the sale ; but, that case has been overruled, and we have since held the same averments, in other petitions, to be sufficient. — Cotton v. Holloway, 96 Ala. 544, and Smith v. Brannon, 99 Ala. 445.

Section 2111 (2455) of the Code provides, in cases for the sale of lands for the payment of the, debts of an intestate, that “the applicant must show to the court, that the personal property of the estate is insufficient for the payment of debts ; and such proof must be made by the deposition of disinterested witnesses. ’ ’ The point is made in this case, that the proof that the personal property*’ of the estate was insufficient to pay its debts, was made by interested witnesses, and the order of sale is, therefore, void.

The two witnesses examined were Wm. T. Hatchett and H. W. Olarlc. It nowhere appears that Wm. T. Hatchett, the administrator of the estate, was the same person who was examined in the proceeding as a witness. Identity of name, as has been held, is presumptive evidence of identity of person, in the absence of evidence showing that the name is borne by two or more persons in the same community. — Garrett v. State, 76 Ala. 18; Wilson v. Holt, 83 Ala. 529, 3 So. Rep. 321; Stevenson v. Murray, 87 Ala. 445, 6 So Rep. 301.

H. W. Clark, as his evidence taken in that proceeding shows, was a creditor of the estate, whose debt was to be paid out of the proceeds of the sale ; but, if interested on that account, which it is unnecessary to determine, or if said Hatchett was in fact an interested witness, such interest, on the part of either or both of the witnesses, can not affect the conclusion we reach. The order of sale of said lands, made by the probate court, is not set out in the agreed statement of facts appearing in the transcript, on which the case was tried in the circuit court. The statement is made, simply, that the-court rendered a decree ordering said lands to be sold for the payment of the debts of said estate.

The duty devolved on the probate court, having acquired jurisdiction in the premises, to determine whether or not the evidence in the proceeding had been taken in the manner required by the statute, upon which a valid order of sale could be made, and was sufficient for that purpose, and if the court found it was so taken and was sufficient, the adjudication is final and conclusive on all persons, however erroneous, unless set aside on appeal. — Goodwin v. Sims, 86 Ala. 107, 5 So. Rep. 587.

We must presume, that the order or judgment of the court contained all that was necessary to uphold its validity, including the finding, that proof of the necessity of the sale to pay the debts was made by disinterested witnesses, and was sufficient. We have recently held, that proof by one such witness was sufficient.— Thompson v. Boswell, 97 Ala. 570, 12 So. Rep. 809.

We have been referred to the case of Stevenson v. Murray, supra, as supporting the contention of appellees. But, it is there expressly and correctly stated, that “when the attack [on an order of this character] is collateral, either by the validity of the order being drawn in question incidentally, in other suits or proceedings, .[as is the case here], or by a petition to vacate the decree made, in and at a subsequent term of the court which rendered it, the rule is well settled with respect to this, as well as all other judgments and decrees in cases in which jurisdiction has attached, that the matter relied on as avoiding the adjudication must appear affirmatively on the face' of the record.” — Pettus v. McGlannahan, 52 Ala. 55.

Presuming, as we must, that no such invalidity appears on the face of the order of sale, we hold that the court erred in giving the general charge in favor of defendants , and in refusing to give it for the plaintiffs.

Reversed and remanded.