7 Ala. 814 | Ala. | 1845
— In Harbin v. Levi, 6 Ala. 399, it was held, that where a contract was made with an administrator as such, no proferí of his letters was necessary in a suit upon the instrument, because the party had admitted his right to sue, by making the contract with him in that capacity. In this case, the contract was not made with the plaintiff as administrator, or rather, it does not appear on the face of the contract, that it was so made, it was therefore necessary for the plaintiff to aver the fact in his declaration, and make proferí of his letters of administration, though the omission would be cured by a verdict.
The decisions of this Court, cited by the counsel for the plaintiff in error, are conclusive to show, that the Court erred in its charge to the jury upon the evidence. We understand the objection to the proceedings in the Orphans’ Court to be, that there was no order made by the Court, directing the title of the land sold under its order, to be made to the purchasers. It is doubtless correct, that until such order is made, the title of the heirs is not divested, as was held in Lightfoot v. Lewis’ heirs, 1 Ala. Rep. 475, and again, in Bonner v. Greenlee’s heirs, 6 Ala. Rep. 411 : but that would be no defence to an action on the note. In Rhode’s adm’r. v. Storr, at the present term, we held, that a recovery coaid be had upon a promissory note given for the purchase of land, although the land had not been conveyed, and there was no memorandum, or note in writing, by the vendor, of the terms of the contract. That case, is certainly as strong as the present. Here the land was sold by order of the Orphans’ Court, the notes executed for the purchase money, the sale approved by the Court, and the purchaser let into possession.
We need not now inquire, what the remedy of the purchaser is to obtain the title, though in Bonner v. Greenlee, 6 Ala. Rep. 414, it is intimated, that in such a case as the present, a decree could he made by the Orphans’ Court, nunc pro tunc, divesting the title of the heirs at law, and vesting it in the purchaser. In Reese v. Lamkin, at the present term, it was held, that a purchaser at a sale of land, made by order of the Orphans’ Court, could not obtain relief against his notes for the purchase money, he having gone into, and retained the possession, unless the heirs were unable, or unwilling to make title.
Whatever may be the right of the purchaser to relief in Chancery, he cannot defend himself at law upon the ground, that he did not obtain title to the lands. Let the judgment be reversed, and the cause remanded.