Pollard v. Hanrick

74 Ala. 334 | Ala. | 1883

SOMERVILLE, J.

— The action is one of ejectment under the statute, brought by the plaintiffs claiming as the heirs of Amanda R. Earnest. The defendants claim title under one Gamble, who purchased the lands in controversy at an administrator’s sale, under an order of the Probate Court made for distribution.

It is insisted, in the' first place, that the order of sale made by the Probate Court was void for want of jurisdiction, because the petition filed by the administrator was fatally defective in its allegations. The statute provides, that a sale of lands for distribution may be made when such lands “can not be equitably divided among the heirs or devisees.” — Code, 1876, § 24:i9. The averment of the administrator’s petition, which was filed in October, 1867, was, that the lands could not be “ equally, equitably divided” among the heirs without a sale.

The governing principle is, that when the validity of such a sale is collaterally attacked, as is attempted in this case, it can not be avoided for mere irregularities, which might prove fatal on direct attack, as grounds of successful demurrer, or of reversible error in the appellate court. The jurisdiction of the court ordering the sale will be sustained, if the application or petition contains substantially the necessary allegations prescribed by statute. Nor is it reqnired that the precise words or language indicated by the statute should be used. It is sufficient, if words of equivalent import or meaning are used. These principles have been often declared, and are well settled. — Bland v. Bowie, 53 Ala. 152; King v. Kent, 29 Ala. 542; Wilburn & Co. v. McCalley, 63 Ala. 436.

• 2. It is an important rule of construction, in all such cases, that, on collateral attack of proceedings of this nature, every reasonable intendment will be made in favor of the validity of titles acquired under them. 1 he language of the petition will be construed liberally for the maintenance of the decree, and no hyper-critical construction'will be indulged favorable to its overthrow. — Bibb v. Bishop Cobbs' Orphans Home, 61 Ala. 326; King v. Kent, 29 Ala. 553; Wright's Heirs v. Ware, 50 Ala. 549.

Under these rules of construction, the averment of the petition in question is, in our opinion, sufficient. The plain and common-sense meaning of the phrase used is not to be destroyed by the mere awkwardness of a redundant expression. Equality is often said to be equity. Equally and equitably were evidently used by the pleader as verbal synonyms, and were so understood by the primary court. A liberal construction will very clearly uphold the language of the petition, as being of equivalent import with that prescribed by the statute. Satcher v. Satcher, 41 Ala. 26; Warnock v. Thomas, 48 Ala. 463.

3. The Probate Court was frilly invested with the authority to appoint another person than the administrator, to execute a conveyance of the land to the purchaser, Gamble. The sale had been reported to the court as regularly made under a valid decree, and the purchase-money was shown to have been fully paid. The court had confirmed the sale, and ordered the administrator to make the conveyance. The death of the administrator, after the making of this order, was a contingency which, in our opinion, would justify the subsequent order appointing and authorizing Crenshaw to carry out the order by making the conveyance. The statute provides, as now amended by the act of March 1, 1881, that “ after such confirmation, and when the whole of the purchase-money has been paid by the purchaser, or any person holding under him, on the application of such person, or such person holding under him, or that of the executor or administrator, the court must order a conveyance to be made to such purchaser by such executor or administrator, or such other person as the court may appoint, conveying all right, title and interest, which the deceased had in such lands at the time of his death; and such order shall operate to vest the title of the decedent in such purchaser.” Session Acts 1880-81, p. 29 ; Code, 1876, § 2468.

The theory of the law is, that the court, and not the administrator, is the true and real vendor; and the person authorized to convey, whether the administrator, or some other suitable person, is the mere agent, or instrument of the court, carrying out its instructions under the powers conferred by the statute.

It is no valid objection, that the title of the defendants was perfected after the commencement of the present suit. The rule in ejectment is, that the plaintiff is not entitled to recover, unless he can show title both at the commencement of the action, and at the time of trial, or judgment rendered. If his title be destroyed, or terminate, between the commencement of suit and the day of trial, he can not recover. — Scranton v. Ballard, 64 Ala. 402. When the order of the Probate Court was executed, authorizing Crenshaw to convey the lands to Gamble, the title of the heirs was divested; and this was necessarily fatal to the successful maintenance of their suit, when set up by' plea puis darrein continuance, which was the proper method of raising the issue. — Feagin v. Pearson, 42 Ala. 332.

There is no error in the rulings of the Circuit Court, and the judgment is affirmed.