McSwean v. Faulks

PETERS, J. This is an order setting aside a sale made by the probate court during the rebellion. The record shows that Lorenzo Faulks died in the county of Barbour, in this State, in the year 1861, without disposing of his property by will. His widow, Elizabeth L. Faulks, and Thomas C. Parker, administered upon his estate. And in October, 1861, the said representatives of said estate filed their petition'in the probate court of said county of Barbour, praying an order for the sale of the real estate of said deceased for distribution among his heirs. This order was granted, and the lands of said deceased directed to be sold on a credit of twelve months. The application for this order of sale seems to contain all the allegations necessary to give the court jurisdiction of the subject matter, and of the parties, as required by the statute. Said order was granted on the 9th day of December, 1861; but no sale was made under it until February, 1862, when the sale was made, and reported to the court, but the court refused to confirm it, and the same was vacated. After this, the said representatives of the estate of said deceased applied to said probate court for an order to keep said estate together for one year, or a period not longer than ten years. This order was also granted. After this, [614] in December, 1863, the said representatives applied to said court of probate to renew said order of sale of the real estate of said deceased. On this application it was ordered by said probate court that “ T. C. Parker and M. L. Faulks, administrators of Lorenzo Faulks, deceased, be allowed now to proceed to make general sales of said estate as heretofore ordered, but which has been suspended, for the purpose of making crops,” &c. A sale was accordingly made on the 15th day of December, 1863, both of the real and the personal property of said deceased. This sale was duly reported on the 13th day of January, 1864. This sale was not confirmed, but rejected by said court of probate. And after this, it seems that another sale of said lands was made on the 16th day of February, 1864, which was also reported to the court. This last sale was never confirmed, and Parker, the purchaser, has since died. On the 13th day of February, 1869, the appellees moved in said court of probate, on petition filed, to “ declare said orders -of sale as to said lands under the same to be null and void, and to vacate and set aside said orders and said sale.” On the hearing, “ the sale of said land by said administratrix and administrator«was declared null and void.” It was shown that the appellant, McSwean, had purchased a portion of said land from Parker, who had purchased the same at said sale while he was the co-administrator of said estate. From this order vacating and setting aside said sale McSwean appeals to this court, and here assigns for error — 1st, the setting aside said-sale; 2d, the granting the prayer of the petitioners as appears by the record. The record leaves it uncertain whether the sale was made under the first order of the probate court, granted in 1861, or under the order reneiuing the said order, in 1863, but it appears that the credit upon which the lands was sold was not a credit of twelve months, as required in the first order of 1861, but only a credit from February 16th, 1864, to the 15th of December, 1864. And it does not appear that Parker ever paid for the land bid off by him, or that bonds with sufficient surety were given for the purchase-money. [615] Such an order as that first above said, made by a competent court after the adjournment, would be conclusive, but the court would still retain power over the sale. Duval’s Heirs v. P. and M. Bank et al., 10 Ala. 636, 653. But this order is not made by such a court, and the court of probate of Barbour county was not bound to confirm it. No action could be had by the lawful jurisdiction at the return of the last sale in 1864. This was a foreign proceeding, and has no conclusive effect. — Martin v. Hewitt, 44 Ala. 418. Not only the sale in such a case, but the order may be set aside upon a proper showing in the court of probate. — Mosely v. Tuthill, McGuire et al., 45 Ala. 621. But even without this, the court of probate had authority to vacate the sale, and was bound to do so, when the proper security for the purchase-money has not been given as required by law. — Revised Code, §§ 2091-3, 2221, 2222, 2225, 2228. No one but MeSwean complains, or -objected to the setting aside the sale. He is a subsequent purchaser from Parker. He was bound to take notice of the title he was buying. He had an opportunity to know all the facts of his title, and if he proceeded regardless of this opportunity, he can not claim to occupy the position of an innocent purchaser without notice.— Wilson v. Wall, 34 Ala. 288, 305 ; Center v. P. and M. Bank, 22 Ala. 755 ; McGehee v. Gindrat, 20 Ala. 101 ; Johnson v. Thweatt, 18 Ala. 747 ; Herbert v. Hanrick, 16 Ala. 597 ; Witter v. Dudley, 42 Ala. 616. The evidence does not show that MeSwean purchased for Confederate treasury notes, and if he did, as he paid the price, this could not affect his title. — Ordin. 1867, No. 38, Pamph. Acts 1868, p. 185. He took such title as Parker could convey. This title was inchoate, and subject to be defeated. He therefore has no reason to complain. The sale was properly set aside, and the court was clothed with full jurisdiction of the parties and the subject matter. — Rev. Code, §§ 2093, 2092, 2095 ; Pamph. Acts 1868, p. 187 ; Ordin. No. 40, § 1. The judgment of the court below is affirmed.