Sermon v. Black

79 Ala. 507 | Ala. | 1885

CLOPTON, J.

The only questions raised by the record are, the jurisdiction of the Court of Probate to make the orders relating to the sale and conveyance of the realty belonging to the estate of Thomas Black, and the consequent sufficiency of the sale and conveyance by his administrator under such orders; inasmuch as it is not controverted that the legal title to the lands sued for resides in the plaintiffs, as heirs at law, unless they have been divested thereof by the proceedings in the Probate Court.

If there be any question which has been settled by the decisions of this court beyond the pale of doubt or controversy, it is that the jurisdiction of the Probate Court, in the sale of the real estate of a decedent, is purely statutory and limited, and must affirmatively appear from the record. The rule is equally applicable, whether the application is to sell for the payment of debts, or for distribution.—Satcher v. Satcher, 41 Ala. 26; Robertson v. Bradford, 70 Ala. 385; Whorton v. Montague, 62 Ala. 201; Tyson v. Brown, 64 Ala. 244. In either case, the jurisdiction of the court can be called into exercise only by an application in writing by a proper party, setting forth the facts which authorize the court to order a sale. The averment of the existence of the statutory ground of sale is necessary to confer jurisdiction. When the jurisdiction appears, subsequent errors and irregularities will not invalidate the sale on a collateral attack; but, if the jurisdiction does not appear, the order of sale is void, and the sale a mere nullity, working no divestiture of the estate and title of the heir.

The allegation of the application is, “that there is no personal property, or property of any character, other than that above described in paragraph 1 of this petition, belonging to said estate, that has come to the knowledge or possession of your administrator; and that it is necessary to sell said lands for distribution among those entitled thereto, and to defray the expenses of this administration.” Passing over the claim of a necessity to sell to defray the expenses of administration, which can not be charged on the lands, unless debts of the decedent are shown, for the payment of which the lands are liable (Garrett v. Garrett, 64 Ala. 263); it is too manifest for argument, that giving the petition a liberal construction, and making every intendment in favor of its sufficiency, it does not contain an allegation of the statutory ground of sale, or allegations of equivalent import, or of facts from which it may be necessarily implied.

There is no error in the record.

Affirmed.