29 Ala. 510 | Ala. | 1857
The argument, urged on behalf of the appellee, that the proof did not correspond with the declaration, and that therefore the charge of the court in favor of the defendant was correct, is based upon the supposition, that the cause of action set forth in the declaration pertains to the plaintiff individually, while the proof conduces to show a right of recovery in him as administrator. The declaration .avers, that the plaintiff was possessed of the slaves, “ as of his own property as such administrator as aforesaid, and being so possessed thereof” casually lost them ; that they came to the possession of the defendant, by finding ; and that the defendant, knowing them to be the property of the plaintiff “ as admin
The charge of the court below, that if the jury believed the evidence, they must find for the defendant, is also defended upon the ground, that the plaintiff declares upon the prior possession of himself in his representative capacity, while the proof shows that ho was never in actual possession, and that he had no right except that which results from the title of his intestate. “ The property in the slaves sued for draws to it a possession in law; therefore, an administrator may declare on his own possession as administrator, though in fact he has never had possession.”- — -2 Chitty’s Pleading, 840, note y ; 2 Saunders’Pl. and Ev. 873. It follows from this indisputable proposition of law, that the averment of the declaration is sustained by proof of title in the plaintiff as administrator, and the consequent right to the immediate possession of the property. — Shelden v. Hoy, 11 Howard’s Practice Rep.
Having disposed of the minor points suggested on the briefs of counsel, we proceed to consider the question, whether the title to the property in litigation was in the plaintiff or the defendant.
A sale, made under an order of court, which is void for want of jurisdiction in the tribunal making it, must, in a case like this, be regarded as if there had been no order. There was an order of sale in this case ; and the sale under it must be valid or void, according as the order is valid or void.
The order of the orphans’ court, set up as authority for the administrator’s sale, through which the defendant claims title, is as follows : (Here the orders above set out are copied.) The statute, from which 'the invalidity of this order is argued, is in the following words: “ It shall not be lawful for any executor, or executors, administrator, or administrators, guardian, or guardians, to take the estate, or any part thereof, of any testator or intestate, at the appraised value, or to dispose of the same at private sale, except when the same is directed by the will of the testator. Bui in all cases where it may be necessary to sell the whole, or any part, of the personal estate of' any testator or intestate, it shall be the duty of the executor, administrator, or guardian, to apply to the orphans’ court of their county, for an order of sale, and upon obtaining the same, to advertise the time and place of such sale,” Src.
This statute does not confer upon the orphans’ court authority to order the personal property to be sold, without limitation or restriction. On the contrary, it is clearly provided, that the order of sale is to be made on the application of the administrator, and where the sale is necessary. This idea is coroborated by the fact, that there is another statute, which directs that, if the estate is not in debt, “ so as to enforce a sale of any part of the estate,” the judge shall, in a given time, take steps to effect a division. In the 'case of Lay’s Ex’r v. Lawson, 23 Ala. 390, Judge Goldthwaite, re
The jurisdiction conferred by the statute under consideration is not authorized by, or deducible from, the act of 1806, (Clay’s Digest, 800, § 21), which confers certain specific powers, and clothes the court with full jurisdiction of all testamentary and other matters pertaining to an orphans’ court or court of probate. At common law, an administrator had full authority to sell the personal property of the estate, and his power in that respect was limited only by his discretion. The directing an administrator to sell, did not pertain to the jurisdiction of any tribunal. Looking, therefore, to the common law, and to the authority exercised by the ecclesiastical courts, in construing the words, “ full jurisdiction of all testamentary and other matters pertaining to an orphans’ court or court of probate,” we can find in those words no authority for the jurisdiction to order sales by an administrator. Therefore, our decisions, in reference to the validity of orders made under the act of 1806, have no application here, and are not affected by this opinion. — Hilliard and Wife v. Binford’s Heirs, 10 Ala. 977 ; Herbert v. Hanrick, 16 Ala. 591; Eslava v. Elliot, 5 Ala. 264; Miller v. Jones, 26 Ala. 247.
The power to order the sale of personal property is the creature of the statute, and the grant of the power, as we have already concluded, is accompanied by a specification of the circumstances under which it is to be exercised ; and those circumstances are, an application by the administrator, and the necessity of the sale. The order of sale in this case
But the very same question that we are considering, in reference to the same order, was before this court in the case of Wyatt’s Adm’r v. Steele, 26 Ala. 639. The court say, in that case : “ Whether a sale was necessary, was a question for the determination of the orphans’ court; a question upon which its jurisdiction depended. The rule is well settled, that when the jurisdiction of the court depends upon a fact, which such court is required to ascertain and settle by its decision, as a preliminary to its jurisdiction, then the exercise of its jurisdiction implies the previous ascertainment of the preliminary jurisdictional fact, and the decision of the court as to the jurisdictional fact cannot collaterally be called in question.” To what extent that decision should be regarded as an authority in this case, can be best determined by comparing it with later and earlier decisions of this court, and testing it by principles recognized in our own and other courts.
In the case of Gunn v. Howell, 27 Ala. 676, it was held, that the judgment of the court of a sister State, in a statutory proceeding by garnishment, was void, because the record did not affirmatively show a return of nulla bona on the creditor’s execution, which was regarded as a jurisdictional fact in the case. The judgment in that case was rendered by a court of general jurisdiction ; but because its proceedings in that
In Hamner v. Mason, 24 Ala. 480, an order of the orphans’ court, discharging the sureties of a guardian, was regarded as valid, because the taking of the new bond, which was a jurisdictional fact, was shown by the record. In that case, the law applicable there, as well as here, is thus laid down : “ Where the fact upon which the power to act depends, is referred by the law maker to be determined by the court or .officer, the determination of the fact by such court or officer is res adjudicata, and cannot be questioned. The question, whether a new bond was given, was referred to the court, and was determined by it. This fact appears affirmatively from the record, and is not traversable.'”
Judge Dargan, in Wilson v. Judge of the County Court of Pike, 18 Ala. 160, in reference to a bastardy proceeding, says : “ It is true the judgments of courts of limited jurisdiction must show the facts and circumstances which authorize the court to take cognizance of the matter ; in other words, they must show the jurisdiction of the court; otherwise, the judgment or sentence is a nullity.”
It is decided in the case of Lamar v. The Commissioners’ Court, 21 Ala. 776, that courts of limited jurisdiction must show upon the face of their proceedings sufficient to support their jurisdiction, or their judgments will be void ; and that a judgment revoking a ferry license was void, because the proceedings did not show that the owner of the franchise had had ten days notice of the requisition to give a new bond. .The statute upon which that decision is based, makes the failure to give a new bond, after the notice prescribed, the ground, or reason, for revoking the license. So that, in this case, the jurisdictional fact was itself made by law the reason, or ground, upon which the court was to exercise the power conferred.
In the case of McCartney v. Calhoun, 11 Ala. 110, a question, strikingly similar to that under consideration, was de
We cite, also, as fully sustaining the principle of the foregoing authorities, decisions of this court in the following cases : Commissioners of Talladega v. Thompson, 15 Ala. 139; same case, 18 Ala. 696-697 (see, also, the quotations from Bacon’s Abridgment in this case) ; Heirs of Bishop v. Hampton, 15 Ala. 761; Wyman v. Campbell, 6 Porter, 219 ; Taliaferro v. Bassett, 3 Ala. 670 ; and Owen v. Jordan, 27 Ala. 608.
From the decisions of this court, collected and cited above, it will be found that there is a long chain of cases, uniformly maintaining, that the orphans’ court was a court of limited, or special jurisdiction ; that therefore, to the validity of its judgments, it is necessary that its jurisdiction should be shown, in each case, upon the face of its proceedings ; and that the facts necessary to support the jurisdiction will not be supplied by intendment. The cases are in irreconcilable conflict with the doctrine of Wyatt v. Steele, supra, that the exercise of jurisdiction implies the previous ascertainment of the jurisdictional fact. That doctrine abrogates the distinction between courts of general, and of special, or limited jurisdiction. In a quotation from 1 Strange, in the Commissioners of Talladega v. Thompson, 18 Ala., that distinction is
The case cited in support of the opinion in Wyatt v. Steele, does not sustain it. The case is Brittain v. Kinnard, 1 Brod. & Bing. 432, (5 E. C. L. 137). It really asserts nothing more, than that the ascertainment of jurisdictional facts, by a court of limited jurisdiction, is conclusive. “ The general principle,” says Dallas, C. J., in that case, “ applicable to cases of this description, is perfectly clear. It is established by all the ancient, and recognized by all the modern authorities; and the principle is, that a conviction by a magistrate, who has jurisdiction over the subject-matter, is, if no defects appear on the face of it, conclusive of the facts stated.” And to the same effect are the decisions of the other judges. The proceedings of the court disclosed the jurisdictional facts ; and the question was, whether they could he contradicted.
The case of Wyatt v. Steele has already been departed ■from by our predecessors, in the cases of Owen v. Jordan, 27 Ala. 608, and Gunn v. Howell, supra ; and is, in effect, overruled as to the principle upon which it proceeds. The question now is, not whether we shall overrule it, but whether we shall repeat the principle decided. We deem it our duty to dissent in terms, as has heretofore been done in effect, from so much of the opinion in Wyatt v. Steele, supra, as is quoted above ; because we cannot adhere to it without overruling a large number of decisions of this court, some of them later than that case, which harmonize among themselves, are well recognized by the profession, and rest upon undeniable principles.
That the statute of limitations does not commence running against the plaintiff, until the appointment of an administrator de bonis non, is settled by the decision in Lay v. Lawson, 24 Ala. 184, and other authorities cited.
For the error in the charge of the court below, its judgment is reversed, and the cause remanded.
The importance of the decision in this case ; the arguments against the opinion delivered at the last term, by the counsel for the appellee, and by other members of the bar, who maintained its incorrectness ; and a sincere desire upon our part to give to all the arguments a most deliberate and- thorough examination, induced us to set aside the judgment of reversal, and to hold the case under advisement until the present term of the court. Our reflections, and examination of authorities, have confirmed us in the opinion expressed'at the last term ; and, while acknowledging the learning and ingenuity of the arguments urged against it, we regard it as a duty to adhere to that opinion.
It has been argued, that the orphans' court ought to be considered a court of general jurisdiction. The argument is drawn from the 9th section of article V of the constitu-tion, which confers upon the general assembly power to establish “a court of probate for the granting of letters testamentary and of administration, and for orphans' business and the act of 1806, (Clay's Digest, 300, § 21,) which creates the orphans' court, and gives it “ full jurisdiction of all testamentary and other matters pertaining to an orphans! court or court of probate.” It is contended, that the orphans’ court was made by this statute, enacted in pursuance to the
At one time in England, the ordinaries had power to sell and dispose of the estates of decedents, and for the manner in which tb ey exercised that power were, in the language of Blackstone, “not accountable to any but to God and themselves.” This discretionary power was exercised by the English prelates, not in a judicial capacity, but as individuals. They did not act as a court, but were clothed with the power of seizing upon the goods, and of appropriating them to various purposes, which changed from time to time, as the people emerged from superstition, until at last the appointment of the widow or next of kin as administrator was provided for by statute; and thenceforward a discretionary power over
It is thus seen, that the authority to order the sale of the personalty of an estate never pertained to any court in England. Our statute conferred upon the court a power which did not belong to it in its general character of an orphans’ or probate court. The statute was, as to the court, an enabling law, bestowing a new power ; and as to the administrator, a disabling law, taking away from him the discretionary power to sell. Its object was, to make that which was before a matter of discretion with the administrator, a matter of judicial power, to be exercised under the circumstances indicated in the statute. As to this power, the orphans’ court is a new jurisdiction, unknown to the common law ; and must, upon a principle too well established to be questioned, be deemed a court of limited jurisdiction.
By the supreme court of Georgia, in the case of Tucker v. Harris, 13 Ga. 1, a forcible description is given of the looseness, carelessness, and irregularity which characterize the proceedings and records of the court of ordinary of that State, to which our court is, in the nature of its powers, strikingly assimilated. From that consideration, the necessity and propriety of a modification of the common law, in its application to that court, and the adoption of a more liberal rule of intendment in favor of its jurisdiction, are deduced. The learned judge, evidently alive to the evil of requiring the records of such a court, constituted as it is, to show affirmatively the jurisdictional facts ; and clearly perceiving the amount of litigation, and the doubtfulness of title, likely to result from the visitation upon the judgments of such a court of the stern rules of the common law, expressed a hope that another legislature would not be permitted to intervene, without the passage of an act, declaring courts of ordinary to be courts of general jurisdiction. We concur with the learned judge as to the necessity of legislation upon this subject; and we think, that an act, declaring that courts of probate shall be regarded as courts of general jurisdiction, when their orders, judgments, or decrees, are collaterally assailed, would meet and remedy the evil as to all subsequent proceedings of that court. But, while we.acknowledge the expedí-
We now, as we did at the last term, announce as our judgment, that the judgment of the court below must be reversed, and the cause remanded.