Matheson's Heirs v. Hearin

RICE, C. J. We understand the appellants to put their right to a reversal of the decree of the chancellor, upon the two following propositions: 1. That the orphans’ court had no jurisdiction to order the salo, under which the appellees claim the land in controversy. 2. That, even if it had jurisdiction, the sale itself can be collaterally impeached for mere irregularities, such as the omission of the administrator to give the notice of the sale directed by law, ¿so. If either of these propositions be correct, the decree of the chancellor must be reversed; otherwise, it must be affirmed. The orphans’ court had no jurisdiction to order the sale, unless that jurisdiction was conferred by the second section of the act of 1818, which is in the following words : ‘Whenever it shall be made to appear to the satisfaction of any orphans’ court, that the estate of any deceased person, or those who are entitled to inherit the' same, will he less injured by a sale of the land, or part thereof, for the payment of debts, than by a sale of slaves, such court may, on the petition of any party interested, cause a citation to issue to all other interested per [216] sons, if in the county, or, when that is not the case, by publication of notice in some paper, for such interested party or parties to appear at the next county court, and show cause, if any they can, why sale of the land belonging to the estate so situated should not be ordered; and on the return of such citation made known, or proof of the publication of the notice hereby required, at the next term of such orphans’ court, if no cause be shown which the court deems sufficient, sucli court may order sale of such land, or whatever parts thereof as may be necessary to satisfy debts, without a sale of negroes; and such sale shall vest in the purchaser the same title, in law or equity, of which such decedent died possessed.” Clay’s Digest, 195, § 18. In Couch v. Campbell, 6 Porter’s Rep. 262, it appeared that the title of the defendants to the land therein sued for, was derived from a purchase at a sale ordered by the orphans’ court, on the petition of the administrator of the ancestor of the plaintiffs, filed under the aforesaid act. The circuit judge who presided on the trial, in his charge to the jury, assumed that the proceedings in the orphans’ court relating to the sale could be collaterally impeached, and that unless certaifi facts, such as the execution of a bond by the administrator faithfully to account for the proceeds of the sale, &c., appeared of record, the title of the heirs was not divested. This court reversed the judgment of the circuit court for the error of that charge, and decided that the orphans’ court had jurisdiction of the case stated in the petition of the administrator— that under the aforesaid act of 1818, .it was authorized to proceed, “on petition and citation, to order the sale of the land belonging to the estate of a deceased person, when the estate, or those entitled to inherit the same, would be less injured by a sale” of the realty than by a sale of the slaves; and that “the jurisdiction was put in full exercise, if not earlier, at least when the court recognized the petition, and made its order for the issuance of citation.” And the conclusion thus arrived at and announced by this court, was declared to be fully sustained by the opinion delivered at the same term in Wyman v. Campbell, 6 Porter’s Rep. 619. In Lightfoot v. Lewis, 1 Ala. Rep. 475, the opinion of this court was expressed in the following language: “The decision [217] in Wyman v. Campbell, 6 Porter, 220, is based on the construction of tbe proviso of the act of 1820 (Aikin’s Dig. 158); but the principle of that case applies equally to all the enactments, by which the Orphans’ court is invested with authority to direct a sale of a decedent’s real estate.” “The principle thus established was, that proceedings to subject the real estate of a decedent to sale, were not to be considered as the execution of a mere power, and, therefore, subject to objection on account of irregularities in its exercise; but as the judgment óf a court of competent jurisdiction, whenever it appears from the record of the proceedings that the events have happened, or the acts have been done, by which a jurisdiction over the subject-matter has been acquired. From this was deduced another principle, equally as important — that irregularities, or even actual errors, in the proceedings of such a court, cannot be examined in a collateral proceeding, but only by writ of error, or appeal, or by some other mode of proceeding acting directly and immediately on the decree.” In Duval’s Heirs v. The Pl. & Mer. Bank, 10 Ala. Rep; 686, this court thus expressed itself: “In Wyman v. Campbell, 6 Porter, 219, it was decided, that proceedings in the orphans’ court, with a view to the sale of the realty, are in rem against the estate of the decedent; and that jurisdiction attaches quoad the thing, where the petition is regularly filed, and recognized by the action of the court, though the party in interest may not be notified of the pendency of the proceeding.” And in that case it was held, “as the clear result of the cases cited,” that whenever the jurisdiction had attached, the order of sale, although reversible in a direct proceeding, was not void, and could not be assailed collaterally for errors and irregularities. In Doe, ex dem. Duval’s Heirs, v. McLosky, 1 Ala. R. 109, the same principles were recognized; and Wyman v. Campbell, and Couch v. Campbell, supra, were cited, and treated as containing sound expositions of the law. In Royall v. Goldsby, at the last term, after a re-hearing granted, and a re-argument had, this court determined to adhere to the principles upon which the cases above cited have been uniformly regarded as resting for support. To [218] the same effect is the case of Doe, ex dem. Saltonstall, v. Riley, 28 Ala. R. 164. The authority of Wyman v. Campbell, and Couch v. Campbell, above cited, has not been denied in any of .the numerous decisions upon the subject, which have been made by this court since January, 1838 — the time when Wyman v. Campbell, and Couch v. Campbell, were'decided. W¿ think the presumption a fair one; that dhe opinions delivered in those cases havé been acted on as a rule of property. And therefore, the reasons which impel courts to uphold every settled rule of property, require us to re-affirm and maintain those cases, not only as to the points necessarily involved in and decided by them, but also as to the principles which are declared in Lightfoot v. Lewis and the subsequent cases above cited to have been established by them. Applying these principles to the case at bar, we are compelled to hold, that the orphans' court of Clarke county had jurisdiction to make the order of the sale, on the petition of the administrator; that the administrator is “a party interested,” within the meaning of the act of 1818; that the order of sale was not void, and, therefore, cannot be collaterally impeached for errors and irregularities; that the sale, made by the administrator under the order, is a judicial sale; and that, although there may be irregularities in it, such as the omission of the administrator to give the notice of it directed by law, it is not void, and cannot be collaterally impeached for such irregularities. — Worthington v. McRoberts, 9 Ala. R. 297; Duval v. The Pl. & Mer. Bank, supra ; Mobile Cotton Press v. Moore, 9 Porter's Rep. 679; Love v. Powell, 5 Ala. R. 58. The points made by appellants in this court, are necessarily decided against them by what we have above said; and the decree of the chancellor is affirmed, at their cost.