King v. Martin

| Ala. | Dec 15, 1880

SOMERVILLE, J.

— A record is proved by its own mere production and inspection, without more, whether of the original or of a copy. — 1 Greenl. Ev. § 501. And while parol evidence is not admissible to correct, amend or explain any clerical error which may have crept into judicial proceedings, as evidenced by an exemplified or authenticated transcript, if an inspection of the entire record clearly discloses the nature and extent of such error, the record may be said to correct itself, and the court will feel authorized to so construe it. The record of the proceedings of the District Court for the Parish of Orleans, and State of Louisiana, as introduced in this case, on petition of the appellant filed in that court to annul the probate of John Martin’s will, and as affirmed on appeal to the Supreme Court of Louisiana, is of this character. The pleadings all clearly show the purpose of the suit. The will is set out in haec verba, and described as dated November 18, 1873. The subsequent misdescription, in the judgment of the court, of the year in which the will was executed, stating it to be 1875, instead of 1873, is a clerical error manifest on the face of the proceedings, and is rendei’ed more plain and certain, if possible, by the established fact, apparent from the record, that the testator died prior to the year 1875.

We think the evidence competent to prove the annulment and vacation of Martin’s will by a court of adequate jurisdiction in Louisiana.

Under the civil Code of Louisiana, as introduced in evidence, the rights and obligations of the deceased ancestor are,, by succession, transmitted immediately to his heirs, and they acquire, eo instanti, a right to take possession of the estate, real, personal, or mixed, such as the case may be. §§ 867, 870. The heir is considered as seized of the succession from the moment of its being opened, and “the right of possession, which the deceased had, continues in the person of the heir, as if there had been no interruption, and independent of the fact of possession.” — Art. 936. He is thus seized of the estate, and becomes entitled “to take possession of the estate, and dispose of it as he pleases, subject only to legal restraint by the creditors, and under the responsibility of paying the debts of the succession.” — McMaster v. Place, 8 La. An. Rep. 431. It is thus obvious that the appellant and other lawful heirs of John Martin, the decedent, acquired by inheritance a community of" interest, in the nature of a tenancy in common, in the estate of the deceased.

The nature and quantum of this interest is governed and determinable by the laws of Louisiana, the domicil of the intestate being in that State at the time of his death ; and the property in question being subject to that jurisdiction. — Story on Confl. Laws, §§ 481, 482, 558. This principle is not changed by the fact that the courts of Alabama afterwards acquired jurisdiction to appoint an administrator, by reason of the death of the decedent in this State, and the subsequent bringing of assets into this State, (Code 1876, § 2349). The rights of heirs, as vested by succession under the civil law, could not be thus divested, unless, perhaps, by administration granted for the payment of debts.

The proof of heirship being satisfactory, the action of assumpsit for money had and received was the proper remedy. This action, in its spirit and purposes, has been likened to a bill in equity, and is an exceedingly liberal action, and will always lie where a defendant has in his hands money which, ex equo et bono, he ought to refund to the plaintiff. — 1 Greenl. Ev. § 102, 117. And as the action of trover will lie by one tenant in common against his co-tenant for the conversion of a chattel, so he can waive the tort and sue in assumpsit if he so elect. — -Perminter v. Kelly, 18 Ala. 716" court="Ala." date_filed="1851-01-15" href="https://app.midpage.ai/document/perminter-v-kelly-6504441?utm_source=webapp" opinion_id="6504441">18 Ala. 716; Smyth v. Tankersley, 20 Ala. 212" court="Ala." date_filed="1852-01-15" href="https://app.midpage.ai/document/smyth-v-tankersley-6504696?utm_source=webapp" opinion_id="6504696">20 Ala. 212; Fanning v. Chadwick, 15 Amer. Dee. 233.

The judgment of the Circuit Judge in this cause, which _was rendered without a jury, under the provisions' of sections 3029 and 3030 of the Code, is, we think, erroneous, and is hereby reversed, and the cause is remanded for further procedure.

The complaint should, however, be amended in accorda nee with the objection taken by demurrer to plaintiff’s replication filed to the defendant’s plea in abatement. The lex fori governs as to all forms of remedies and modes of proceeding in legal actions. — Sto. Confl. L. § 556. Section 2892, (Code, ’76), authorizing the wife to sue alone, where the suit relates to her “separate estate,” ha's reference only to her separate estate created under the laws of Alabama, and not under those of Ohio, or any other foreign juri sdiction. — Pickens v. Oliver, 29 Ala. 529. The wife having an interest, as disclosed by the. statute laws of Ohio introduced in evidence, and the property sued for not being her statutory separate estate, under the laws of this State, the husband is a proper party plaintiff, and should be joined with the wife.

Jteverscd and remanded.