83 Ala. 528 | Ala. | 1887
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Supposing that the parties intended to execute such a contract, it is not improbable that the aid of an expert would be invoked to prepare it; that the expected husband, not the wife, would see to its preparation, and that he would have incorporated in it what had already been agreed upon between the parties. There is an extreme absence of all suspicion that this portion of the res gestee attending the transaction was not entirely bona fide, and free from the appearance of any unfair contrivance. It would seem, therefore, not to require the most cogent evidence that the instrument thus carefully prepared was the one actually signed. This evidence is furnished by the coincidence of the entire testimony from beginning to end, and especially by the repeated admissions of Mrs. Chambliss, which are clearly admissible as declarations against interest, if not explanatory of her possession of the property in controversy. — Humes v. O'Bryan, 74 Ala. 64. She is proved to have declared on sundry occasions, during the life of Dr. Wilson, that he had an interest in her estate, lands and slaves, and to have admitted, after his death, that his children would get a part of the property. The decided weight of the testimony is, that this was a half interest — the precise amount covered by the marriage-contract proved to have been prepared by Col. Troy. The credibility of the several witnesses who testify as to these admissions is assailed, as improbable and unworthy of belief, especially of the colored witnesses who were former slaves. It
It is contended that the Probate Court obtained no jurisdiction of the case, and had no authority to sell the lands, because the petition made to that court showed that there was a will made by Mrs. Chambliss, and yet failed to show that no power of sale was given by the will. Is this a jurisdictional allegation in an application made to sell lands for distribution among devisees, the fact appearing in the petition that there is a will? It is admitted that such is the case, where the application is made by an executor- or administrator with the will annexed, to sell lands for the payment of debts. — Bev. Code, 1867, § 2079. Whatever doubt there might be on the subject, were the question a new one, we regard the proposition as settled, that where the will confers a
The petition filed by Noble, under which the present lands were sold, was fatally defective in failing to contain this jurisdictional averment. The Probate Court, therefore, acquired no jurisdiction to sell, and the attempted sale made under the void order was itself void, conferring no legal title on the purchasers. If the purchasers at this sale got nothing more than an equity, they could transfer no better title than they had acquired, all sub-purchasers being charged with notice of the defect in the Probate Court proceedings, which was matter of public record. Sharpe, for this reason, occupied no better vantage-ground than the Gibsons; and they, at most, acquired only an equity against such of the distributees as received their share of the purchase-money.
It is unnecessary for us to decide the question, as to how far a bona fide purchaser for value of the legal title, acquired at a judicial sale made under an order of the Probate Court, will be protected against secret equities attaching to the title. It may be doubted in such cases, whether the rule of caveat emptor, which applies to judicial sales, will go further than . to cover those defects which may be disclosed by an examination of the chain of title; or, at least, whether it would cover such secret equities as no ordinary diligence could discover. — Code, 1876, §2200; McMillan v. Preston, 58 Ala. 84; Banks v. Ammon, 27 Penn. St. 172; LeNeve v. LeNeve, 2 Lead. Cas. Eq. (3d Amer. Ed.), p. 195; Basset v. Nosworthy, Ib. 69, 72; Ohio L. & T. Co. v. Ledyard, 8 Ala. 873; Freeman on Ex., §336, 509; Rorer on Jud. Sales, §462; Whelan v. McCrary, 64 Ala. 328; Prince v. Prince, 67 Ala. 565; Fore v. McKenzie, 58 Ala. 115; Perkins v. Winter, 7 Ala. 855; Bailey v. Timberlake, 74 Ala. 221, 225.
The other points urged are not, in our judgment, well taken.
The decree of the chancellor, under these views, is erroneous, and will be reversed, and the cause remanded.