39 Ala. 324 | Ala. | 1864
Tbe title of the appellant in this case rests on a sale made under a decree in chancery. Tbe bill, wbicb was tbe commencement of tbe chancery proceedings, was filed by tbe children of Evan Nicholson, deceased, against Edward Gunter, tbe father of tbe present appel-lees ; and proceeded against him as surety of John E. Nicb-
While that suit was pending, and before any order was made affecting the merits, Edward Gunter died; administration was taken out on his estate, and the same was reported and decreed to be insolvent by the proper orphans’ court. This report and decree of insolvency were pleaded in the chancery court by the administrator, he claiming that, by virtue of the decree of insolvency, the lien of the attachment and levy was lost; and that the estate of the decedent must be equally applied to the payment of all the debts against it. No further proceedings seem to have been had in the chancery court under the pleadings in said cause ; nor was there further action had in said suit, in the form of proceedings by complainants to collect from the surety of their guardian what was due to them as his wards. No new pleadings were filed in said cause, enlarging or modifying its purposes or policy; while all the after-proceedings in the chancery court, as we gather the same from the orders, decrees, and reports, give it the form of an administration and settlement of the estate of the said Edward Gunter.
It is proper that we state, before entering upon the discussion of this question, that the present record furnishes no evidence, either by recitals or otherwise, that the ap-pellees were before the court, or had any knowledge of the proceedings. Nor, indeed, were their names anywhere mentioned in the record. Hence, what we say is not to be understood as asserting that the same rule would apply, if the record recited that the parties appeared, or that they were present.
In the case of Shriver’s Lessee v. Lynn, (2 How. U. S. 60,) the supreme court of the United States said: “The chancellor is authorized to proceed in a summary mode, under the statute, for the sale of land, in the predicament of the above tract, after the decease of the devisee without heirs. But he can only proceed on the application of persons interested. Here [there] was no such application for the sale of this land. The sale being without authority, the ratification of it by the court must be considered as having been given inadvertently. If given deliberately, and on a full examination of all the facts, still it must be regarded as an unauthorized proceeding. There was no case before the court — nothing on which its judgment could rest.”
In the State of Ohio, the doctrine of presumptions in favor of jurisdiction has been carried as far, perhaps, as in
It is contended that, the proceedings we are considering-being in rem, the court was in possession of the res, and therefore the decree, though irregular, is not void. It is, perhaps, a sufficient answer to this argument, that the court never had possession of the res, under any proceeding with which the present decree can connect itself. Moreover, the hen of the levy being destroyed by the decree of insolvency pronounced in the matter of Gunter’s estate, the court had lost all power over the land growing out of that levy.
But, conceding that the order for the sale of the land was a proceeding quasi in rem — the view which the authorities force us to take (Wyman v. Campbell, 6 Porter, 219; Matheson v. Hearin, 29 Ala. 210; Field v. Goldsby, 28 Ala. 218)—still this record falls far short of making a case which can stand the test of even collateral scrutiny. Mr. Greenleaf says, “ It must appear that there have been regular proceedings to found the judgment or decree; and
Without intending to declare what would be our opinion, if this were a proceeding in personam, we feel no hesitation in announcing tbat there was a total want of jurisdiction in tbe chancery court to order a sale of tbe land which is tbe subject of this suit. Tbe result is, that tbe decree is void, and tbe sale under it conferred no title on tbe purchaser.
Judgment affirmed.