84 Ala. 197 | Ala. | 1887
The plaintiff, as one of the admitted heirs of Harrison Austin, deceased, shows herself to be en
The defendant sets up a title acquired by him under a sale made in November, 1885, by one Moore, as administrator of Austin’s estate, on application to sell the lands fox-division or distribution among the heirs of the estate. The petition was in every respect regular, and in due fox-m, except that it failed to designate the plaintiff among those named'as heirs of the decedent. It is contended by appellant’s counsel, that, in as much as she was not named in the proceedings in the probate court, as a party, or distributee, she can not be concluded by the sale made under that order of that court.
The precise point has many times been raised before this court, and has been adjudged against the view contended for by the appellant’s counsel.
In Duval's Heirs v. McLoskey, 1 Ala. 708, decided in 1840, the administrator of Duval had filed his petition, under the act of 1822, praying the county court to sell the lands in controversy for the payment of debts. The petition, under which the sale took place, properly described the lands, and averred the jurisdictional grounds of sale, as required by the statute, but it failed to conform to the statute in defectively omitting to mention the names of any of the heirs. The proceeding was held to be one “in rem, against the estate of the intestate, and not in personam,” and the omission of the names of the heirs was held to be an irregularity which would authorize a reversal on a direct appeal, but one that did not affect the jurisdiction of the court to make the sale, and could not be taken advantage of collaterally in an action of ejectment by the heirs for the land. The conclusion reaclxed was based on the case of Wyman v. Campbell, 6 Port. 219, where it was decided, in 1838, and again reiterated iix 1840, in Lightfoot v. Lewis, 1 Ala. 475, and other-cases, that proceedings in the Orphan’s Court to sell realty were “in rem, against the estate of the intestate, and not in personam,” and that plenary jurisdiction was vested in the court, over the thing — in the nature of an admiralty proceeding — although the owner, or party in interest was not notified of the pendency of the proceeding; and that jurisdiction attached quoad the thing, when the petition was regularly filed by a proper party, and was recognized by the action of the court, without notice to parties concerned; and that,
The same question arose again in Duvals Heirs v. The P. & M. Bank, 10 Ala. 636, decided in 1846, and the principle was again announced that the decree of the county court, ordering a sale of the decedent’s realty, under the act of 1822, could not be collaterally impeached by showing that there was an entire failure to designate the heirs by name in the petition, or elsewhere in the record — this not being a jurisdictional allegation, and that such omission did not render such sale void. In each of the foregoing cases the parties assailing the validity of the sales were the heirs themselves, whose names had been omitted from the petition of the administrator, and other subsequent proceedings, they being in the first case plaintiffs in an action of ejectment, as in the present action, and in the second parties complainant to a bill in equity instituted against the purchaser. The sale was held to be as binding against them, on collateral attack, as if they had been made parties, and served with regular notice of the pendency of the proceeding.
In Field's Heirs, v. Goldsby, 28 Ala. 218, decided in 1856, the doctrine of these cases was again reviewed. The objection there urged to the petition of the administrator, which was filed praying a division among heirs, was, that it failed to set forth the heirs who were of full age, which it was insisted was a jurisdictional allegation, in as much as it was expressly required by the statute. The principle to which we have above adverted, as settled in Duval v. McLoskey, 1 Ala. 708; and Duval v. P. & M. Bank, 10 Ala. 636, was reiterated by Goldthwaite, C. J., and adhered to by the court, with the following observation: “Could we regard the .question as an open one, we might arrive at a different conclusion from that which was attained in Duval v. McLoskey, supra, but after it has been recognized by a subsequent decision, and has probably been acted up>on as a practicable rule of property, roe do not feel at liberty to depart from, it.”
That was about sixteen years after the first announcement of the principle by the court in 1840. Since then more than thirty additional years have elapsed — making, in all, forty-
In Mathewson's Heirs v. Hearin, 29 Ala. 210 (1856), this court, speaking through Rice, C. J., in discussing Wyman v. Campbell, supra, and the case-above cited, declared the presumption to be a fair one that “the opinions delivered in those cases had been acted upon as a rule of property,” and, therefore, that “the reasons which impel courts to uphold every settled rule of property, require us to reaffirm and maintain those cases, not only as to the points necessarily involved, but as to the principles which are declared in Lightfoot v. Lewis, and the subsequent cases above cited to have been established by them.”
The case of King v. Kent's Heirs, 29 Ala. 542, was decided the following year, 1857, and upon the strength of the foregoing authorities, it was said: “In determining upon the validity of the decree of the Orphan’s Court, when collaterally assailed, it is only necessary to inquire whether the court had jurisdiction of the subject matter; for the proceeding is in rem, and no mere irregularity can render it void.”
These cases again came under judicial review in Satcher v. Satcher, 41 Ala. 26, decided in 1867, where the following language was used by Walker, C. J.: • “The proceeding in the Probate Court for the sale of the decedent’s land is held, by a long chain of decisions, not now to be questioned, to be in rem; and therefore the validity of the order can never depend upon the fact that the court has acquired jurisdiction of the person of the parties. The requisition of notice is just as plainly and as positively made in the act of 1822 as under any subsequent law. — Clay’s Digest, 224, § 17. Under the act of 1822, the order of sale was not void on account of the want of notice. It was so settled by the decisions of this court. We can not,” he added, “decide to the contrary, unless we disregard the doctrine of stare decisis, and overturn decisions which constitute a rule of properly, under tohich millions of dollars'1 ivorth of land are probably held. No person who will examine the act of 1822 can say that there is a reason for regarding the proceeding to sell land under the present law as in personam, which did not apply to the old law, under which, as every intelligent lawyer knows, the proceeding was regarded as in rem." In discussing elsewhere, in the same case, and declining to assent to the proposition. that the sale is made void by a failure to comply with every statutory requirement, it is suggested that such a rule would
There has been no departure from the principles of these cases at any time during the past fifty years, but on the contrary they have been constantly re-affirmed. — 3 Brick. Dig. 465, §§ 162 et seq. In McCorkle v. Rhea, 75 Ala. 213, decided as late as 1883, while declining to extend the rule announced in Duval v. McLoskey, supra, to proceedings for the partition or division of property owned by tenants in common, we Observed as follows: “Perhaps these cases (citing Whitman v. Reese, 59 Ala. 532, and Johnson v. Ray, 67 Ala. 603), are not in strict analogy to the lino of decions, so long prevailing in this State, in which it is held, that, upon application by an administrator, to sell the lands of a decedent, the failure of the petition to state the names of the heirs, although expressly required to be done by the statute, is not the omission of a jurisdictional averment, which would render the sale void, but a mere irregularity rendering the judgment reversible on error. — Duval v. McCloskey, 1 Ala. 708; Matheson v. Hearin, 29 Ala. 210. This principle has become a rule of property in this State, in this particular class of cases, and under its influence, no doubt, many titles have been acquired. However unsound we might be disposed to regard it, we do not feel at liberty to depart from it at this time.”
"We regard it, therefore, we repeat, as established by a long line of decisions in Alabama, extending through half a century, that, on an application by an administrator to the Probate Court to sell the lands of a decedent, whether for
The Circuit Court did not err in giving the general affirmative charge in favor of the defendant, or in refusing to give the charge requested by the plaintiff, and the judgment must be affirmed.