70 Ala. 385 | Ala. | 1881
This is a statutory action of ejectment, brought by the appellant against the appellee, for the recovery of certain real estate in the town of Tuskegee. The plaintiff claimed title as the sole heir at law of E. A. Ligón, deceased, who died in the year 1863, seized and possessed of the property in suit. The defendant based his defense on a title claimed under a sale of the same property, which was alleged to have been made by R. F. Ligón, as the administrator of the estate of said decedent.
The main question presented is, whether the Probate Court had jurisdiction to order the sale, on the application made by the administrator. It is contended, in behalf of the appellant, that the allegations of the petition, which was filed in August, 1863, were insufficient to confer jurisdiction upon the Probate Court, and that, for this reason, the order of sale made by it was void and of no legal validity.
The application was filed under the provisions of section 1755 of the Code of 1852, which authorized the Probate Court to sell the lands belonging to an estate, for the payment of debts, in cases of intestacy, on application being made in writing by the administrator, in two cases only: 1st, when the personal property was insufficient to pay such debts; and, 2d, when it was “ more beneficial for the estate to sell lands than slaves.”
The averments of the petition are, that it “ is necessary to sell property to pay the debts of the estate,” and that “it would be more to the interest of all the parties to sell the house and lots them the personal estate.”
The court below charged the jury, that the averments of the petition were sufficient to uphold the jurisdiction of the Probate Court in granting the order of sale in question; and exception was duly taken to this charge by the plaintiff. Objection was also taken by the plaintiff to the admission in evidence by the court of the petition and other proceedings based on it in the Probate Court, on the ground that they were void.
It has been too long settled in this State to require any further discussion of the subject, that the jurisdiction of the Probate Court to order a sale of lands, in cases like the present one, is statutory, special, and limited. It is equally well settled,
It may be a sound and correct principle, that, in determining' whether the record does disclose the jurisdictional facts, the language of the petition should be construed most favorably for the maintenance of the decree; for public policy favors the upholding of such sales, and of the titles acquired under them. Bibb v. Orphans’ Home, 61 Ala. 326, 330. But, at the same time, the principle is now too thoroughly imbedded in our system of jurisprudence to be disturbed at this late day, that there is a manifest distinction, touching presumption of jurisdiction, between courts of general, and those of limited jurisdiction. Where a court is of the first class, possessing general jurisdiction, nothing is intended to be without such jurisdiction, except that which appears to be so from the record. And, on the contrary, nothing is presumed tp be within the jurisdiction of a court of limited jurisdiction, except that which is so expressly alleged, and affirmatively appears from the record.—Petlus v. McClanahan, 52 Ala. 55; Commissioners v. Thompson, 18 Ala. 694; Freeman on Judgments, §§ 117, 123, 264.
An application of these principles, we think, must prove fatal to the sufficiency of the petition under consideration in this case. The allegation of the petition is, that “ it would be more to the interest of all thepa/rties to sell the house and lots than [to sell] the personal estate.” The required averment, as exacted by the statute, is, that it would “ be more beneficial to the estáte to sell the lands than [to sell] slaves.” The two phrases are not substantially the same in meaning. Their signification is essentially different. While it may be seriously questioned whether; “all the parties’’ within the descriptive language of the petition, and “the estate’’ within the intend
The appellee can derive no aid from the recent act of the General Assembly, approved March 1, 1881, entitled “An act for the protection of purchasers of lands sold by executors and administrators.” — Acts 1880-81, pp. 119-120. This act has no application to cases like this. It is confined, in its express terms, to suits by heirs or devisees, which are “founded on defects in the records [of Probate Courts] caused by the destruction of such records,” or by “ i/ncompetency, or negligence of the probate judge, or his failure to make the proper records.” II. § 3, p. 120
And if the present case could be construed to come within the influence of the act, as contended for by appellee’s counsel, it would clearly be invalid so far as it might attempt to give power or vitality to a void judgment. It is well settled, on the soundest conceivable principles, that no power resides in any legislative body to clothe a decree or judgment, which is absolutely void, with the habiliments of legal validity. — Freeman on Judgments, § 117, note 4, and authorities cited; Pryor v. Downey, 19 American Reports, 242; Freeman on Void Jud. Sales, § 56. .
The judgment of the Probate Court decreeing the sale of
The Circhit Court clearly erred in its charge and rulings, and its judgment is accordingly reversed, and the cause is remanded.