McCartney v. Calhoun

11 Ala. 110 | Ala. | 1847

ORMOND, J.

The principal question in the cause is, whether William King, the administrator of David Calhoun, in the State of Georgia, acquired a title to the slaves, Mike, Candice and their children, by his purchase at his own sale, made in that State in the year 1828. If the sale was wholly unauthorized, the purchase by him was a nullity; but if the court of ordinary, in Georgia, had jurisdiction of the subject, and could therefore have directed the sale of the slaves, no matter how irregular its action may have been, the proceeding is not void, but voidable merely,' and the title acquired by a purchaser at such an irregular sale, will be good until the order is reversed by a direct proceeding, having that for its object.- The law was so held by this court, on great consideration, in the case of Campbell v. Wyman, 6 Porter, 219, and Couch v. Robinson and Campbell, ib. 262. The principles there determined, have1 been repeatedly recognized since, and must now be considered the settled law of this court.

To ascertain whether the court of ordinary in Georgia, acquired jurisdiction, we must look to the statute conferring the power, which is as follows : “No administrator shall be allowed to sell any slave or slaves, belonging to the estate.of his intestate, but where the other personal estate, together with the hire of each slave, or slaves for twelve months, shall be insufficient to discharge the debts due by the estate; or where one or more slaves shall be subject to distribution, and an equal division thereof cannot be made in kind, it shall be lawful for the court of ordinary, by which administration was granted, to direct the sale of such slave or slaves. Provided always, that such distributee, or his, her, or their guardian, shall receive twenty days notice in writing, previous to the granting of such order, to show cause if any he or they can, against such sale.” [Prince’s'Dig. 234, <§> 45.]

We are not advised of any authoritative exposition by the courts of Georgia upon this statute, but it is obvious that these courts, as the orphans’ court in this State, are courts of special, and limited jurisdiction. The source of their power, is found in the acts of the legislature creating them. From the authority there conferred, they derive their jurisdiction, and if no warrant can there be found for their acts, they are coram non judice.

It is evident the statute just cited, did not confer on the .court of ordinary the right to direct the sale of slaves, as in its discretion it might think proper; nor did it have such power as an incident of granting letters of administration, but only in two contingencies — where the other personal property, together with the hire of the slaves for a year, was insufficient for the payment of the debts of the deceased, or when an equal division could not be made in kind among the distributees. As these are facts which the court could not judicially know, it necessarily follows, that it must act upon the representation of the administrator, or of the dis-tributees, or some of them, and this representation is its authority for entering upon an investigation of the facts, which may result in its judgment, that a sale is necessary, evidenced by its order, or decree directing a sale to be made. Unless the record discloses that a representation of the facts was made, by some one authorized to make it, the court was without jurisdiction, and could not enter upon the inquiry, whether a sale was necessary; for no principle is better settled, than that the jurisdiction of every court of special, and limited jurisdiction, must appear on the face of the proceedings. [Talliaferro v. Basset, 3 Ala. R. 670, and cases there cited.] The argument urged, that we must presume those things to have been done, without which the court of ordinary could not have directed the sale of the slaves, is at war with the entire current of authority, and would confound all the distinctions, between courts of general and those of limited jurisdiction.

If it appeared from the record, that a petition . had been filed, either by one being found in the record, or the recital of the record, that the necessary representation had been made, every presumption in favor of the correct action of the court would be proper, when its judgment came collaterally in question; but we cannot presume the power of the court to act; that must appear from the record itself.

From the record it appears, that Martha M. Calhoun, and William King, were appointed administrators of the estate of David Calhoun, at the March term, 1827, of the court of ordinary for Franklin county, Georgia, and executed their bond as such, and at the same term of the court, the following order was made: .“It is ordered by the court, that the administrator of David- Calhoun proceed to sell, after advertising the same according to law, the following negroes belonging to said estate, to wit: Mike, Candice, and her three children, Mike, Green, and Isaac.” There is then nothing shown upon this record, that the court had power to make this order, but it appears to have been considered by the court as an ordinary act of power, flowing from the grant of letters of administration. There is no citation to the heirs, or any evidence furnished by the record, that the court entered upon the inquiry, if we could presume the proper representation to have been made, whether a sale was necessary and pro-0 I per.

This statute of the .State of Georgia, appears to be entirely analagous to the statutes of this State, authorizing the orphans’ court to order a sale of land, for the purpose of paying debts, or for more equal distribution among the heirs. Our statutes provide that this may be done, on the petition of the administrator, and citation to the heirs; or when commissioners appointed to make division, return that such division cannot be fairly and equitably made. In expounding these statutes, it has been held, that the jurisdiction of the court attached, when it acts upon the petition of the administrator and ,dhects citation to the heirs — or when the court assumes to act upon such petition, reciting it, or upon the report of commissioners, that an equitable division cannot be made. . [Campbell v. Wyman, and Couch & Robinson v. Campbell supra, and Duval’s Heirs v. McLoskey, 1 Ala. R. 730; see also, Thompson v. Tolmie, 2 Peters, 157, and McPherson v. Cunliffe, 11 S. & R. 429.]

Our conclusion is, that as it does not appear, that the court of ordinary had jurisdiction to order a sale of these slaves, the administrator acquired no title by his purchase, but that ■they still remain the property of his intestate. This renders it unnecessary to inquire, what would be the effect under the law of Georgia, of an administrator purchasing at his own ' sale.

This was also the conclusion of the chancellor, and he ■correctly considered that these slaves and their increase were still liable to the distributive share of the complainant in 'his father’s estate. To ascertain which, an-account was necessary, and must be taken, of the administration of King, upon Calhoun’s estate ; one third part of the sum remaining in his hands for distribution being the distributive share of the complainant, subject to a deduction for all proper expenses -incurred by King, in boarding, clothing, and educating him.

The defendants, purchasers from King pending this litigation, :and having also express notice of the complainant’s demand, are in no better condition than King; but, in -our opinion, the chancellor erred in referring it to the master, to ascertain after the account was taken, what sum each of these defendants should pay, and after making demand of them, to issue execution for the amount if not paid. This was erroneous, because it deprived the defendants of the right of excepting to the account stated by the master, and to the apportionment made by him, among the several defendants, of the gross amount found due from King to the complainant. These acts were not ministerial merely, they involved the exercise of judicial power, and therefore the defendants could not be deprived of their right of exception, and appeal to the chancellor.

The bill is not multifarious. As to the claim set up in the bill to the distributive share of J. 0. Calhoun, it is sufficient to say, that Spence was the administrator both of the estates of King and J. C. Calhoun, and that these estates were so blended together, that they could not well have been separately considered, and all the defendants, as purchasers of the slaves as the property of King, were equally interested in both estates, as it respects the complainant’s demand. The defendants having purchased the slaves as the property of King, have a common interest in resisting the complainant’s equity. It is no objection that they purchased under different judgments, as it is not necessary that their interest should be joint. It is sufficient that they' have an interest which is common to, or concerns them all. [P. & M. Bank v. Walker, 7 Ala. R. 950.] Besides it was proper to unite them all, that the loss might be properly apportioned among them.

It is proper to remark, to prevent misapprehension, that all questions relating to the account, and the principles upon which it should be stated, are designedly left open. Let the decree be reversed, and the cause remanded for further proceedings.