42 Ala. 168 | Ala. | 1868
Lead Opinion
No valid ground for the order of sale, under which the property was sold by the appellant as administrator, is alleged in the application for sale. No ground or reason whatever for the sale is stated by the probate court in its order. — Revised Code, § 2067, (1743 j) Ikelheimer v. Chapman, 32 Ala. 676 ; Wyatt v. Rambo, 29 Ala. 510; Hall v. Chapman, 35 Ala. 553.
The fact that the decedent’s will directed a sale of the property was certainly no ground for an order of sale by the probate court. — Eevised Code, §§ 2067, (1743,) 206 8 (1744;) Annual Alabama Conference of the Methodist Episcopal Church v. Price, MS.; McCollum v. McCollum, 33 Ala. Rep. 711.
The order of sale was void, and the plaintiff can not recover the purchase money. We regret that such is the law, yet it has been long so settled in this State. We can only say, as this court has said before, that the corrective is with the legislature. — Beene v. Collenberger, 38 Ala. 647.
Concurrence Opinion
I concur alone on the doctrine of stare decisis, not because I approve of the principles and results of the cases of Wyatt v. Rambo, Ikelheimer v. Chapman, Hall v. Chapman, and Beene v. Collenberger, above cited. I think the latter case is abhorrent to justice, and is the natural result of some other such cases.
Affirmed.