Cowles v. Pollard

PETERS, C. J. It is now well settled in this State, that where the trusts of a will are doubtful, or the personal representative may have difficulty, or be embarrassed in the execution of such trusts, a court of equity will, at his instance, take jurisdiction to construe the will, and aid and direct the administrator or executor in the performance of his duties. Sellers v. Sellers, 35 Ala. 235; Trotter v. Blocker, 6 Porter, 269. Such has been the proceeding in this case. And when a court of chancery once takes jurisdiction of an administration, on any ground of equitable interposition, the cause will be retained, and the administration will be conducted and finally settled in that court. Stewart v. Stewart, 31 Ala. 207; Wilson v. Crook, 17 Ala. 59; Hunley v. Hunley, 15 Ala. 91. In such a suit, the chancellor will apply the law regulating the conduct and settlement of administrations in the court of probate, but he will proceed according to the rules and practice of a court of equity. Hall v. Wilson, 14 Ala. 295; Talliaferro v. Brown, 11 Ala. 702. Then, the sale of the land and other property of the deceased, under an order of the chancery court, in such a proceeding, must have the same force and effect, that a like sale would have, when made under authority of an order of the court of probate. In the court of probate, such a sale will not be held void, unless the court has acted without jurisdiction, or without notice to the parties to be affected by its judgment. Satcher v. Satcher’s Adm'r, 41 Ala. 26, and cases there cited. Here, most obviously, upon the principles above settled, and now not to be departed from, the chancery court, in the conduct of the administration of the estate of Thomas M. Cowles, deceased, had properly acquired full and complete jurisdiction over the estate, and over all persons who might be, or who might become, parties interested in its disposition. The authority for the sale of the land in question was supported by. a competent jurisdiction, regularly exercised, with notice to all persons interested therein. The order for the sale was regularly granted; the sale was regularly made, regularly reported, and regularly confirmed. Such a sale, after its. confirmation by the court, cannot be treated as a nullity. It remains good and valid, until it is set aside in some regular proceeding for that purpose, or until it is reversed upon appeal. 41 Ala. 26, supra. The sale in this case was made and confirmed in December, 1859. This bill, to enforce the lien for the payment of the [448] purchase-money not paid at tbe sale, was filed in May, 1873 ; and to this original bill, the appellant filed her answer and cross-bill. This is above thirteen years since the sale was confirmed. It is true that the appellant was not the bidder at the sale made by the executor, Pollard, under authority of the order of the chancery court. But Williams was, and she assumed his bid, and suffered herself to be substituted as the purchaser, in the executor’s report of the sale to the court; and the sale was reported and confirmed in her name as the purchaser, without her objection; and she received the deed for the land so purchased, and took possession of the same, with her husband’s concurrence and consent, and held the same until default in the payment of the purchase-money; and she and her husband united in the notes, and in the mortgage for the security of the unpaid purchase-money. The appellant, being a married woman, without the powers of a sole trader, would not have been authorized to purchase land on a credit on her own account, or to enter into any general contracts not connected with the control and disposition of her separate estate. Cowles v. Marks, 47 Ala. 612; Francis v. Wigzell, 1 Madd. Ch. R. p. 259; Adams’s Eq. top p. 191, marg. 45, 46, and notes. But she might settle the terms of the purchase of land, or other property, and then go into a court of chancery, and ask the confirmation of such a sale in her favor; “ and that court, having jurisdiction of the subject-matter, and of her and of her estate, might grant such relief as her application would permit. Courts of chancery rightfully assume control over married women and their estates. 2 Story’s Eq. §§ 1366, 1327, 1368, 1429; 2 Roper on Hus. & Wife, ch. 20, ubique. In a court of chancery, for the purposes of that jurisdiction, a married woman is no longer hindered by the disabilities of marriage. Generally, she is there treated as a femme sole ; and the. court, in theory at least, becomes her guardian and trustee. Through its sanction and aid, she may do vfdiat without such aid she would be forbidden to accomplish. 2 Story’s Eq. §§ 1327, 1368, 1429. And however irregularly or unwisely this jurisdiction may have been exercised, tbe action of the court cannot be pronounced void, so long as it is permitted to remain in force and unreversed. The record shows that the appellant permitted herself to be made a party to the proceeding in the chancery court, so far as the sale of the land in controversy is concerned, by assuming the bid of Williams as her own, and completing the contract of sale with her husband’s consent. In this, she elected, in the chancery court, to be treated as the purchaser, and complying with the order of the court for the security of the purchase-money; and whether this security was effected by [449] the mortgage of herself and husband, or by a retention of the vendor’s lien, could not alter the right of the vendor to enforce a foreclosure. In any event, the vendor, under his right of lien, would be entitled to have the land sold for the payment of the purchase-money. He could not be divested of his title as executor without this. Rev. Code, §§ 2095, 2096; also, Wood v. Sullens, 44 Ala. 688; Napier v. Jones, 47 Ala. 90; Cordova v. Hood, 17 Wall. 1. If the appellant made the purchase, and had it confirmed and sanctioned by an order of the chancery court, about which there seems to be no doubt as the facts are presented by the present case, she could secure the purchase-money by a mortgage, and the mortgage would be subject to be foreclosed. Haygood v. Marlowe, at present term. This is the result of the decree of the learned chancellor in .the court below, from which this appeal is taken. In this, there is no error, of which the appellant is entitled to complain, so long as the sale stands unavoided and unreversed. The judgment of the court below is affirmed, with costs.