48 So. 793 | Ala. | 1909
The administration of the estate of James A. Boy, deceased, was properly removed from the probate into the chancery court of Jefferson county upon appropriate bill filed by Louis A. Roy, who was an heir at law of said interstate. Consequent upon this bill the usual processes and practices of the chancery court were employed to bring in parties respondent, resident and nonresident, adult and infant, and a guardian ad litem, consenting in writing to so serve, constituted, to represent the infant parties in interest in the cause. The jurisdiction, therefore, attached for all purposes of administration, unless infirmities to be considered intervened to thwart the effective exercise, in respect' of the sale of the real estate for division, of the powers of the court.
Pending the administration, after removal, the administratrix, Cecelia N. Roy, a party respondent, filed her petition therein, praying a private sale of the real estate belonging to the estate for the purpose of division among those entitled thereto, npon the ground that the realty could not be equitably divided. The petition was favorably considered, and a decree entered ordering the private sale as prayed. In the course of the procedure, from the filing of the petition to the decree of (private) sale, the following steps, required in like proceedings in the probate court, conveniently thus enumerated by one of the solicitors in the cause, were not observed: (1) The day for the hearing was not 40 days after filing the petition. (2) There was no publication for non
The errors assigned propound these questions for decision: First. Is the chancery court, in administering an estate of which it has jurisdiction, bound, in order to effect a valid sale, for division, of real estate thereof, to observe the statutory requirements provided for such sales in the probate court? Second. May the chancery court validly order a private sale of real estate, 'Subject to confirmation thereby? Third. Is the decree erroneous in requiring, as a condition precedent to the execution thereof, a bond as provided by Code 1896, § 759?
The majority of the court hold that, as the only authority for any court ordering the sale of a decedent’s lands, for distribution, is found in section 157 et seq., of the Code of 1896, it necessarily follows that the requirements of those sections must be complied with, in the chancery as well as in the probate court. The day for the hearing should have been appointed., as required by statute. Publication should have been made as to nonresidents. There should have been a guardian adlitem for this proceeding, and the sale should have been in accordance with the statxxte. The importance of the questions presented affored my reason for a statement of xny views in dissent froxn the xnajoxfitv.
The first inquiry is more a matter of interpretation of our previous decisions bearing thereupon then the ascertainment and anxiouncement of substantive law in the premises. For this reason, as well as because best proxxxotive of the effort to declare a sound conclusion, I quote several of these adjudications, from the pens of cur learned elders-
Sharp v. Sharp, 76 Ala. 312: “When a court of equity takes jurisdiction of the administration of an estate of a decedent, the court takes the estate in its condition at the time of taking jurisdiction, and is governed by the laws regulating and controlling the sale of property, the payment of debts, and settlement of administrations which are applicable to the administration of estates in the probate court. Following its own practice, the court will decree a sale of lands, when necessary, and when, in similar cases, a court of probate would have had jurisdiction to order a sale. * * * The probate court has jurisdiction to order a sale of the lands of an intestate, in only two cases — for the payment of debts and for distribution. * * *”
I interpret the cited statute, in the light of previous decisions of this court, to impose on the equity courts, in the exercise of the statutory, incidental power to sell lands for division, pending administration of the estate, none of the conditions to its exercise by the probate courts, other than the substantive prerequisite to effecting such a sale, viz., that the lands cannot be equitably partitioned among those entitled thereto, must exist and be so judicially ascertained. Otherwise stated: That the practices of courts of equity were not supplanted,
The foundation for this conclusion, which exonerates courts of equity from the statutorily prescribed steps to call into play the power of courts of probate to make such sales, is the distinguishing, between the two courts, characteristic, viz., that equity, once assuming jurisdiction of an estate, will proceed to its final and complete settlement, adjudicating all questions and enforcing the rights of all concerned — a power unknown, of course, to courts of probate. The latter court, in sales of real estate for division, is therefore bound to the procedure defined in the statutory system to that end, and cannot exert the power independent of this procedure. The law is necessarily the same, in such matters, in both courts, and the law, as distinguished from the practices of each, is that the sale, passing title, when confirmed, may be effected when the court has judicially ascertained the fact that the real estate cannot be equitably partitioned. The basis stated for the view of the writer is thus aptly announced in Tygh v. Dolan, 95 Ala., at page 271, 10 South. at page 838 among others: “And when an administration is removed into the chancery court for any purpose or in any part, it is there in whole and for all purposes. There can be no splitting up of an administration, any more than any other cause of action. It is one proceeding throughout, in a sense, and the court-having paramount jurisdiction of it must proceed to a final and complete-settlement.” Upon the bill for removal into the chancery court, jurisdiction, entire, was invoiced and assumed, not only of the subject-matter — the administration of the estate — but by regular processes the parties were brought into the court. The guardian ad litem was formally so constituted in the entire cause. The sale of lands for division, because they could not
The argument that, since the power possessed by courts of equity to sell lands for division is derived solely from statute, and must, therefore, result, in valid exercise, from the employment of all statutory steps thereto, is not applicable, for the reason, stated before, that the procedure for such sales in courts of probate was not imposed upon courts of equity exercising the jurisdiction to effect such sale in course of the administration of an estate. Independent of the pertinent decisions by this court, as the writer interprets them, there never was any occasion to cumber the equity court with the procedure required to be pursued by courts of probate. For instance, if the requirement, in the probate court, that the inability to effect equitable partition must be proven by deposition taken as in chancery cases before the sale for division could be validly had, is applicable to courts of equity, these courts would be denied their prerogative to refer to the register the ascertainment of the essential fact — would be compelled, without reference to the register, to determine the issue upon the proof taken. Nothing would be gained by such a limitation on practices of the equity courts, for the report of the register on issues of fact submitted for ascertainment is always accompanied with a statement of the testimony upon which the conclusion is based. The majority yield this statutory requirement, and yet its command is as imperative as any of the others held to be applicable. Like reason obviates an necessity to require 40 days to lapse between
Authority to effect the sale in question by private contract was sought and granted. The writer was at first inclined to .the view that no such power could be exer: cised by the court, and this independent of the statute requiring, in sales by the probate court, that such sales be at public outcry. Fuller consideration has led me to the contrary conclusion. The practice of courts of equity to direct such sales by private contracet seems to be well established, and so upon the idea that the manner of sale is a matter reposed in the sound discretion of that court. —Dan Ch. Prac. p. 1293, and authorities there noted; Cox v. Price (Va.) 22 S. E. 512. The court is the vendor, and its primary object is to obtain for the property, in the interest of those entitled to the proceeds, full value. This may be best accomplished by private contract, through such occasions must needs be rare. But, whether the sale be at public outcry, after due publicity, or by private contract, title thereunder does not pass until
The decree of sale required, as a condition precedent to the sale thereunder, the execution of the bond stipulated in Code 1896, § 759. I think the theory upon which such sales for division rests denies the application of this statute to them. In other words, my opinion is that that statute has reference only to strictly adversary proceedings, by which property is subjected to obligations, aside from mere community of ownership. The theoiy underlying the sale for division, in preference to partition which cannot be equitably accomplished, is that each joint owner or tenant in common is entitled to have his interest segregated and delivered to him, and to do so the character of the common property is charged into money; but the interest of no one of such owners, save in the cost of the proceeding, which is generally distributed, is diminished or enhanced. No title or right, in the sense _ of diminution in estate, is affected, favorably or adversely. Under these circumstances it could not have been contemplated that the burden of a bond, conditioned as defined in the statute, should be borne in order to effect the division of the common property desired; and to so apply the statute would necessarily lay the condition of a guaranty, in a sense, upon one seeking a «ale, when his co-owners would thereby be deprived of naught save the cost of division by sale, a process resulting presumably to the best interest of all concerned.
Reversed and remanded.