84 Ala. 555 | Ala. | 1887
On November 11, 1872, W. M. Ligón, as administrator, sold a portion of the lands of the estate of David Gr. Ligón under an order of the Probate Court, and himself became the purchaser. Under an amended order,, he sold October 15, 1874, other lands which were purchased by J. T. Smith. The sales were duly reported and confirmed. In February, 1877, Ligón made a final settlement of his administration. On February 8, 1888, he reported the payment of the purchase-money and made application for orders of conveyances of title. On the same day, without notice to the heirs of decedent, the court ascertained that the purchase-money had been paid, and made an order that Ligón as administrator make a conveyance to Smith of the lands bought by him, and appointed T. _ J. Burton commissioner, and directed him to make conveyance to Ligón of the lands purchased by him. In April thereafter the appellants, who were heirs at law of the decedent, moved the court to vacate and annul the orders for the conveyances of title. From the judgment of the court, refusing to grant this motion, this appeal is taken.
The statute provides generally, that after confirmation of the sale and payment of the purchase-money, on application of the purchaser, his heirs, or some person claiming under him, or of the personal representative, the court must order a conveyance to be made to such purchaser, his heirs, or person claiming under him, by the personal representative, or such other person as the court may appoint.- — Code, 1886, § 2124. It is insisted that application by the purchaser, his heirs, or person claiming under him, or by the personal representative is a jurisdictional fact, and that Ligón was not the administrator at the time the application was made, by reason of having made a final settlement in 1877. As settled by our former decisions, a final settlement, though regularly made, does not necessarily discharge the administrator from further accounting, unless there is an order discharging him from his office, or unless decrees are rendered distributing the residue of the estate among those entitled, and they have been paid. — Simmons v. Price, 18 Ala. 405; Tarver v. Tankersley, 51 Ala. 309. In the absence of proof that an order was made discharging the administrator, or that decrees of
The next question' is, are the orders, or either of them, void for want of jurisdiction of the parties ? At this. stage of the consideration, the case diverges, the validity of the respective orders being governed by different principles. Proceedings to sell the real estate of a decedent are in rem, unless contested, when they become infer paries. -When notice of the application for an order to sell is given to the heirs, they are considered as having notice of all the proceedings, which follow in the usual and regular course; and the power of the court is continuous from the institution of the proceedings to the order of conveyance of title, irrespective of the lapse of time. — Todd v. Flournoy, 56 Ala. 99. When the application is made by the administrator for an order of conveyance of title to a purchaser other than himself, notice to the heirs is not essential to its validity. — May v. Marks, 74 Ala. 249; Farley v. Dunklin, supra. The order that the administrator make a conveyance to Smith is valid, notwithstanding notice was not given to the heirs. But, a different rule is applicable to the order for a conveyance of title to the administrator. In Dugger v. Tayloe, 60 Ala. 504, it was held, that when the application is by the purchaser, notice to the personal representative is essential, and a decree rendered without it is void. The decision is rested on the ground, that if the purchase-money be paid, the administrator loses all right to maintain an action at law, or a suit in equity, for its recovery, and is chargeable with it in his representative capacity as assets; and though the statute is silent as to notice, that it should not be construed so as to violate the established principle, that notice of any judicial proceeding, which is to deprive a party of rights, or impose a liability, is essential; necessarily implied from the
The judgment of the Probate Court is affirmed, as respects the order of conveyance of title to Smith, but is reversed in all other respects, and judgment will be here rendered vacating and annulling the order directing conveyance to be made to the administrator, W. M. Ligón.