Smitha v. Flournoy's Adm'r, 47 Ala. 345

Smitha v. Flournoy's Adm'r

47 Ala. 345 | Ala. | 1872

PETEES, J.

This proceeding involves but one question of importance. That is this : Are the allegations of the petition for the order of sale for said lands sufficient to give the court of probate jurisdiction in the case made in the application; or, in other words, does the petition make any case at all?

This must depend on the construction of the statute under authority of which the proceedings in the court of probate were conducted. This statute is the Code of Alabama, as amended and altered by the act of the general assembly of this State, entitled “ An act to regulate the sale of real and personal property by executors and administrators,” approved February 7, 1854. — Pamph. Acts, 1853-54, Act No. 58, p. 55.

This important act has been carefully examined by this court, and construed; and the result of this construction is, that “ mere errors and irregularities in the proceedings do not render void the order of sale.” — Satcher v. Satcher’s *360Adm’r, 41 Ala. 26. Such, constructions enter into the law itself, and form a part of the title of such estates as depend upon it; and it is of the highest importance that they be adhered to, at least so far as those estates are concerned, which have grown up under the statute so construed. The construction, in this way,-necessarily becomes a part of the law, and the law is a part of the judgment of the court. — Ram. on Leg. Judg., 2 et seq.; Gelpcke v. The City of Dubuque, 1 Wall, 175; The Ohio Life and Trust Co. v. Debolt, 16 How. 432.

The above meiitioned statute enacts, “ That no application for the sale, for any purpose, of the lands of. deceased persons, shall be acted upon by any judge of probate, unless such application shall conform to the requirements of section 1868 of the Code.” — Pamph. Acts, 1853-54, p. 55, § 2. The section of the Code thus referred to is in these words : “ The application for that purpose must be made by the executor or administrator; must describe the lands accurately; and give the names of the heirs or devisees, and their places of residence ; and such application must also state, if any, and which, of such heirs or devisees are under the age of twenty-one years, or married women, or of unsound mind.” — Code of Alabama, § 1868; Rev. Code, § 2222. The court must also be entitled, in fact, to take jurisdiction of the persons and the thing, which are to be affected by its judgment, before its proceedings can have validity. Without this, the' judgment is void.— Williamson v. Berry, 8 How. 495, 541, et seq.

Here, the application to declare the order of sale void, and to set aside the sale, shows that the lands were, in fact, within the jurisdiction of the court, But it is contended that the court of probate, being- one of special jurisdiction, the averments of the application must show this fact. This is not, however, the language of the law above quoted. It requires that the lands shall “ be accurately described.” Jurisdiction is a fact that may be put in issue by a plea. If the right to take jurisdiction in fact exists, then such a plea would be of no avail. It could not be sustained. The application in this case avers all the facts *361required by the Code, and the description of the lands, if not perfectly accurate, is accurate as far as it goes. It would be sufficient in a deed, and possibly in a will. Hawkins v. Hudson, 45 Ala. 482. Such a description is sufficient to bring the subject within the jurisdiction of the court. The description may have been corrected and made perfect. It .entitled the court to proceed. This was all that was needed to give validity to its judgment, when the proper parties had notice. — Comstock v. Crawford, 3 Wall. 396; Satcher v. Satcher’s Adm’r, 41 Ala. 26, supra, and cases there cited; Grignon v. Astor, 2 How. 319, 338.

But, besides this, the court of probate may judicially take notice that “Eufaula” is an incorporated city in the county of Barbour, in this State; that it is a railroad terminus, and the location of a post-office, and that there is but one post-office so named in this State; and consequently that lots situated in said city of Eufaula are in the county of Barbour, and in the State of Alabama. — Pamph. Acts, 1855-56, p. 224, No. 278; Pamph. Acts, 1869-70, p. 186, No. 183; Pamph. Acts, 1832, act Dec. 18, 1832; 1 Greenl. Ev. § 6. It may also judicially know the boundaries of said county, and that said county includes lands coming within the land-office.description of the lands mentioned in the petition for the sale. This, although very irregular, and very careless, is sufficient to sustain the jurisdiction of the court.

The courts of the State exercise one branch of the sovereign power of its government, and their authority to act is called their jurisdiction. — Const. Ala. 1867, Art. III, § 1; Art. VI, § 1; Const. Ala. 1819, Art. II, § 1; Art. V, § 1; Rev. Code, §§ 660, 698, 746, 790. This is but an agency appointed by the people for the common good. And such irregularities as might have been objected to in the progress of the proceedings in the court below, and corrected there, should not be allowed to be interposed to render the action of the court itself nugatory and injurious, and to deceive and betray all who have necessarily been required to rely upon the instrumentality of the court. I, there-*362fore, feel strongly urged to repel sucb constructions of the important law above quoted, as shall force the court to defeat its own judgments, when, of right, the jurisdiction was clearly justified by the facts. Here, the lands sold brought a fair price in sound funds, which have doubtless been properly applied to the legitimate purposes of the estate, or have gone into the hands of the hems and distributees of the deceased ; and all those who were of sufficient age and capacity have consented 'to the sale by a long acquiescence, and it does not appear that justice can be done to all the parties by a re-sale.

An administrator de bonis non has such an interest in the estate of a decedent, whom he represents, as to authorize him to make an application in the court of probate to set aside a void sale of the lands of the deceased, made by order of said court. .

For the error above pointed out, the judgment of the court below is reversed, and the cause remanded, and the court below is directed to dismiss the appellee’s petition in that court. And the appellee will pay the costs of this appeal in this court and in the court below.