56 Ala. 321 | Ala. | 1876
[After stating the facts as above] That there was a lien on the land for the payment of the part of the purchase-money for which the note or bond was given, is
The section, 2095 of the Revised Code, under which the proceedings were had, is as follows: “.Whenever the court is satisfied that the sale was fairly conducted, and the land sold for an amount not greatly disproportionate to its real value, and the purchase-money is sufficiently secured, it must make an order confirming such sale.” The substantial thing to be here done, is the confirmation; and it is, in effect, enjoined upon the court that it be satisfied that the terms of sale are properly complied with, before passing its order for that purpose. It is to use care, but may act on the report of the administrator. It does not thereby adjudicate, that the cash installment has been paid, or that the security for the balance is good. The effect of the confirmation is only a notification to the parties that the court approves the contract, and authorizes them to proceed in the execution of it,
It may be supposed, however, that the sub-purchasers in this case bought, besides an equity, the legal title, because the court had'" ordered a conveyance of the land to "White, and a deed of it was thereupon made to him by the former administrator. But the law expressly declares, that the Probate Court should make such an order, only after “ the whole of the purchase-money” had been paid; and the record expressly shows that one half of it was not yet due, and that there was a note or bond therefor existing and outstanding. The legal title was not in the court, nor was it in the administrator. It existed in the heirs of* Nichols; and the power given to the court to convey it is a special author
But the legal title to the land was in the heirs of the deceased, Nicbols. The Chancery Court, in such a case, in the interest of all the parties, will require to be empowered to convey the title complete, both for the purpose of obtaining by the sale the entire value of the property, and of investing the purchaser with a title that will be good both at law and in equity. The heirs of Nichols should have been made parties to the bill.
The decree of the chancellor failed to prescribe the order in which a sale should be made of the several parcels of the land bought by the sub-purchasers from White, defendants in this cause. According to the rule on this subject, any of the land that White might own, should be first sold; then the parcels that were sold by him to others, in the inverse order of such sales. The parcels bought by appellant, Wallace, would, under this rule, be sold last, or so much thereof as might be necessary to pay the balance of the decree of the court then remaining unpaid. — Mobile Marine Dock Insurance Company v. Huder, 35 Ala. 717, and cases there referred to.
The decree must be reversed, and the cause remanded.