126 Ala. 350 | Ala. | 1899
Jurisdiction having been obtained, no mere error or irregularity in its exercise can make
The probate court proceedings for the sale of the lands for partition through which the plaintiff derives her title were seemingly in all respects regular except the variance in one of the initial letters of the name of the commissioner appointed by the court, and who conducted the sale, reported it to the court for confirmation, and executed the deed to the purchaser. In the decree ordering the sale the commissioner appointed by the court to make the sale is F. M. Barney. The commission issued by the court was to T. M. Barney. The report of the sale is signed by T. M. Barney, and the deed is executed by T. M. Barney. The decree of confirmation, after reciting that “T. M. Barney, heretofore appointed by the court to sell,” etc., confirms .the sale made by him.
Section 3182 provides, “if, upon the hearing, the court is satisfied, from the proof, that such property cannot be equitably divided or partitioned among the' parties in interest, it must decree the same to be sold, and make and issue all such orders as may be necessary to effect the sale thereof, and appoint a suitable commissioner,” etc.
Section 3184 provides, “if the commissioner dies, resigns, or neglects, or refuses to act, at any time, before the sale, another may be substituted in his stead by the court, who shall have the same power in completing the sale as if originally appointed.”
The sale of lands by commissioners acting under the order of the court, is not like the execution of a naked power, conferred by an individual. “It is the act of the court, through the commissioners as its ministerial agents, over whose acts it retains a controlling power. It is not concluded by their action, but may, in its discretion, set aside the sale when made, and direct another. It follows that the test of the correctness of such sales is not the action of the commissioners, but the ratification of the sale by the court.”—Jennings v. Jenkins, 9 Ala. 289.
In Kellam v. Richards, 56 Ala. 240, it is said: “The commissioners appointed to conduct the sale were the
The statute above quoted (§ 3182) does not requiretlie court to appoint a commissioner in the decree ordering a sale of the lands. While doubtless it does contemplate that all orders made and issued necessary to effect the sale and the appointment of a suitable commissioner, shall be entered upon tlie minutes of the court, yet the failure to do so Avould be a mere irregularity that Avouid not affect the validity of the decree of confirmation Avhich is the final decree in the proceedings. So likewise should the commissioner originally appointed die, resign, or neglect or refuse to act, the failure of the court to enter an order upon the minutes reciting these facts and appointing another in his stead, Avould not render the final decree of confirmation of the sale Amid. Indeed, Ave are not prepared to say, if the particular cause Avas before.us on appeal, that the commission issued by the court to T. M. Ramey would be a reversible error. Certainly on collateral attack Ave will presume, if the two names be regarded as signifying two different persons, that F. hi. Ramey Avas dead or that he resigned or neglected or refused to act, and that the court appointed T. M. Rainey to act as commissioner in his stead.
The court,erred in excluding the record of proceedings of the probate court and of the deed made by Ramey as commissioner to the plaintiff in obedience to the decree of confirmation.
There aatis no error in excluding the deed from Preston and others to W. E. Ell edge for the reason that it does not describe tbe lands sued for.
Reversed and remanded.