Lamar v. Gunter

STONE, J. Tbe title of the appellant in this case rests on a sale made under a decree in chancery. Tbe bill, wbicb was tbe commencement of tbe chancery proceedings, was filed by tbe children of Evan Nicholson, deceased, against Edward Gunter, tbe father of tbe present appel-lees ; and proceeded against him as surety of John E. Nicb332 olson, who was their guardian. The object of the bill was to collect out of said Gunter and bis effects an alleged indebtedness from John R. Nicholson, the guardian, to the complainants, his wards. The bill, among other things, prayed for an attachment against the effects of said Gunter, which was granted. Under this attachment the sheriff levied on the lands in controversy, as of the estate of the said Gun-ter. The lands were brought into that suit in no other way. While that suit was pending, and before any order was made affecting the merits, Edward Gunter died; administration was taken out on his estate, and the same was reported and decreed to be insolvent by the proper orphans’ court. This report and decree of insolvency were pleaded in the chancery court by the administrator, he claiming that, by virtue of the decree of insolvency, the lien of the attachment and levy was lost; and that the estate of the decedent must be equally applied to the payment of all the debts against it. No further proceedings seem to have been had in the chancery court under the pleadings in said cause ; nor was there further action had in said suit, in the form of proceedings by complainants to collect from the surety of their guardian what was due to them as his wards. No new pleadings were filed in said cause, enlarging or modifying its purposes or policy; while all the after-proceedings in the chancery court, as we gather the same from the orders, decrees, and reports, give it the form of an administration and settlement of the estate of the said Edward Gunter. [1.] We need not inquire whether the issue and levy of the attachment out of the chancery court were at the time regular. Whether regular or not, after the death of Gunter, and the report and decree of insolvency pf his estate, were brought to the knowledge of the chancery court, that court, in all its subsequent action, proceeded on the conceded basis that the estate had been so decreed insolvent, and that the lien of the attachment was destroyed. That the lien created by the levy of the attachment was destroyed by the decree of insolvency, is too well settled in this State to be now an open or debatable question.—See [333] Hall v. Cummings, 3 Ala. 398; Fitzpatrick v. Edgar, 5 Ala. 503; Burk v. Jones, 13 Ala. 171; Langdon v. Raiford, 30 Ala. 238. [2.] The lien of the attachment being gone, and there being no pleadings which sought an administration and settlement of the estate of Edward Gunter, it follows that, in all the chancery court did after that time, we must deal with this record as if the several orders and decrees of the court had been pronounced without any pleadings whatever in the cause, or recitals showing the parties to be before the court. This conclusion is supported by the following axiomatic propositions: First, a judgment^between A and B can derive no support from pleadings between 0 and D ; and second, a judgment establishing the ownership of one piece of property, is not upheld by pleadings which assert a claim to another piece of property. It is proper that we state, before entering upon the discussion of this question, that the present record furnishes no evidence, either by recitals or otherwise, that the ap-pellees were before the court, or had any knowledge of the proceedings. Nor, indeed, were their names anywhere mentioned in the record. Hence, what we say is not to be understood as asserting that the same rule would apply, if the record recited that the parties appeared, or that they were present. In the case of Shriver’s Lessee v. Lynn, (2 How. U. S. 60,) the supreme court of the United States said: “The chancellor is authorized to proceed in a summary mode, under the statute, for the sale of land, in the predicament of the above tract, after the decease of the devisee without heirs. But he can only proceed on the application of persons interested. Here [there] was no such application for the sale of this land. The sale being without authority, the ratification of it by the court must be considered as having been given inadvertently. If given deliberately, and on a full examination of all the facts, still it must be regarded as an unauthorized proceeding. There was no case before the court — nothing on which its judgment could rest.” In the State of Ohio, the doctrine of presumptions in favor of jurisdiction has been carried as far, perhaps, as in [334] any other State. In that State, speaking of a statute which was very comprehensive in its provisions, the court said: ‘'Previous to 1824, proceedings to subject the real estate of a decedent to sale for the satisfaction of his debt, were ex-parte — were purely and strictly in rem. Nothing further was necessary to give the probate court jurisdiction than to present a petition.”—See Robb v. Lessee of Irwin, 15 Ohio Rep. 698. In a later case the court said: “The power to hear and determine a cause is jurisdiction; and it is coram judice whenever a caséis presented which brings this power into action. But, before this power can be affirmed to exist, it must be made to appear that the law has given the tribunal capacity to entertain the complaint against the person or thing sought to be charged or affected; that such complaint has actually been preferred; and that such person or thing has been properly brought before the tribunal, to answer the charge therein contained.”—Sheldon v. Newton, 3 Ohio St. R. 499. See, also, U. S. v. Arredondo, 6 Peters, 709; Rhode Island v. Massachusetts, 12 Peters, 718; Watson v. Spence, 20 Wend. 265; Shæfer v. Gates and Wife, 2 B. Mon. 455; Hunt’s Heirs v. Ellison’s Heirs, 32 Ala. 173-200. It is contended that, the proceedings we are considering-being in rem, the court was in possession of the res, and therefore the decree, though irregular, is not void. It is, perhaps, a sufficient answer to this argument, that the court never had possession of the res, under any proceeding with which the present decree can connect itself. Moreover, the hen of the levy being destroyed by the decree of insolvency pronounced in the matter of Gunter’s estate, the court had lost all power over the land growing out of that levy. But, conceding that the order for the sale of the land was a proceeding quasi in rem — the view which the authorities force us to take (Wyman v. Campbell, 6 Porter, 219; Matheson v. Hearin, 29 Ala. 210; Field v. Goldsby, 28 Ala. 218)—still this record falls far short of making a case which can stand the test of even collateral scrutiny. Mr. Greenleaf says, “ It must appear that there have been regular proceedings to found the judgment or decree; and [335] tbat tbe parties in interest in rem have bad notice, or an opportunity to appear and defend tbeir interests, either personally, or by tbeir proper representatives, before it was pronounced; for tbe common justice of all nations requires tbat no condemnation should-be pronounced, before tbe party has an opportunity to be beard.”—1 Greenl. Ev. § 541. See, also, Bradstreet v. Neptune Ins. Co., 3 Sumner, 606; Woodruff v. Taylor, 20 Ver. 73; Mankin v. Chandler, 2 Brock. 126-7; Green v. Shaver, 3 Humph. 139; Pickens v. Nance, 6 Humph. 151; Grier v. Campbell, 21 Ala. 331; Thompson v. Alien, 4 S. & P. 184. Without intending to declare what would be our opinion, if this were a proceeding in personam, we feel no hesitation in announcing tbat there was a total want of jurisdiction in tbe chancery court to order a sale of tbe land which is tbe subject of this suit. Tbe result is, that tbe decree is void, and tbe sale under it conferred no title on tbe purchaser. Judgment affirmed.