| Ala. | Jan 15, 1846
As we intimated at the hearing of this cause, it is a plain case for the plaintiff in error.
If it were conceded that sales made by order of the Orphans’ Court, were to be governed by the same rules which regulate the execution of powers generally, we apprehend it would be difficult to establish, that a vendee could take advantage of the defective execution, by an agent, of a power; to which he was privy, añd consenting, against the will of him for whom the agent acted, and who was willing and desirous to affirm the due execution of the power. The authorities relied on, are either expositions of what is necessary to the due execution of a power abstractly considered, or they are cases, where the principal is endeavoring to avoid the acts of his agent, because the authority under which he acted was not strictly pursued. It is not necessary to pursue this subject further, and we content ourselves with referring, on this point, to the kindred case of Jennings v. The Adm’r of Jenkins, at this term.
This case stands upon higher grounds than the inability of a vendee to taire advantage of the defective execution of a power, conceding that such was the fact, against the will of the agent’s principal, desirous to affirm it. This is a judicial sale, it is in effect, a sale made by the Orphans’ Court, act
It certainly would be a most unjust procedure, if a purchaser at such a sale, with full knowledge of all the facts, or at least having the means of knowledge, could be permitted, nevertheless, to go on with the purchase, execute his notes for the purchase money, take possession of the land, suffer the sale to be confirmed by the court, in the belief that it was regular-, and after the lapse of nearly three years, abandon the possession, and refuse to pay the purchase money, for an alledged irregularity in the sale.
The case of Lamkin v. Reese, 7 Ala. R. 170, goes far beyond this, and yet relief was refused in Chancery. That was a proceeding in equity, for the rescission of a sale, made by order of the Orphans Court. It was held, that although the Orphans’ Court had no jurisdiction to decree the sale, yet if the purchaser took possession of the land, and retained it for two years, he could not rescind the contract, if the heirs were able and willing to make him a title.
The evidence as to the defect of title to a part of the land, was álso improperly admitted. If there was a total failure of the title, a court of equity might, in a proper case, afford relief — or if it failed as to a part of the land, might possibly decree compensation; but the mere fact that the title was imperfect, or that there was an incumbrance upon it, would be no ground, in the absence of fraud, for equitable interposition. [Perkins v. Winter, 7 Ala. Rep. 871.] But in no case could the purchaser defend himself at law, whilst the
It was also contended, that there had been no confirmation of this sale by the Orphans’ Court. The order of the court is to the following effect. “ The commissioners appointed to sell the estate of Robert Porter, deceased, having submitted their report in writing, it is ordered, that the same be recorded.” This is, in our opinion, a confirmation of the report. No precise form of words is necessary to effect this; any thing which expresses the approbation of the; court, to the action of the commissioners, is sufficient. It was not necessary that the court should have directed that a deed should be made to the purchasers, and it may have been a prudential course to withhold it, until.the purchase money was paid. It certainly had the power to do so.
We have not thought it necessary, or proper, to enter on the inquiry, whether the power conferred by the Orphans’ Court on the commissioners, was rightfully exercised by them in this case, so as to be obligatory on the heirs, as well as the purchaser, because, in our opinion, the vendee is not in a condition to raise that question. Having made the purchase, with knowledge of the facts, executed his notes for the purchase money, taken possession of the land, and permitted the sale to be confirmed by the Orphans’ Court, without objection on his part, he cannot be permitted to deny, that those from whom he purchased, had power to sell.
It results from these views, that the court erred in its charge to the jury, and its judgment must therefore be reversed and the cause remanded.