Doe ex dem. Hamilton v. Hardy

BRICKELL, C. J. The jurisdiction of a court of probate to decree a sale of lands descended to heirs is statutory. It is in rem, not in personam, attaching whenever an application is made by a proper party disclosing the existence' of facts authorizing the decree. Jurisdiction having attached, errors or irregularities intervening in the course of the proceeding do not affect the validity of the decree, when collaterally assailed. The decisions on this point are numerous, and too well known and recognized by the profession, to require a citation of them. There are doubtless errors and irregularities in the proceedings of the court of probate, on which a decree for the sale of the premises in controversy was rendered, which would have compelled an appellate tribunal to reverse it. The petition is loosely drawn, and could not on demurrer be deemed pleading, averring the facts on which the jurisdiction of the court depends. Its insufficiencies and defects are all amendable, and could have been cured while the proceedings were in fieri. Amendable defects of this character cannot, when the decree [296] is collaterally assailed, justify a sentence of nullity. Before such sentence is pronounced, the want of jurisdiction, not its irregular exercise, should be manifest. The adoption of any other principle would impair the value and dignity of judgments, and would practically nullify the statutes which prescribe a short period as a bar to an appeal or writ of error to revise them. The appellants insist the decree of sale is void, “ because the petition failed to describe the lands accurately. The description being only by section, township, and range, the court could not know that they were in this State even, or if in the State, in what land district or county.” The inaccuracy exists not only in the decree, but in the application for the sale, and the record does not supply the evidence to correct it. This objection was capable of amendment, while the proceedings were in progress to a final decree, and could have been made a ground of reversal on appeal to this court. If an appeal had' been prosecuted, and the decree reversed because of this defect, the cause would have been remanded to the court of probate, and an amendment would then have been allowed curing the defect. If a deed or grant had the same defect apparent on its face, and it became necessary to identify the premises, parol evidence would have been received to show the true location of the premises. The same evidence is admissible now, to show that the lands ordered to be sold are within this State, and of consequence within the jurisdiction of the court. If the lands ordered to be sold in fact lie without the State, the decree is a mere nullity, not casting a cloud on the title of the heirs. This objection has several times been preferred to this court, as a cause for invalidating decrees of sale, rendered by courts of probate, and has been invariably repudiated. Smitha v. Flournoy, 47 Ala. 345; De Bardelaben v. Stoudenmire, 48 Ala. 643 ; Mooney v. Turnipseed, January term, 1873; Wright v. Ware, June term, 1873. There would be but little security in judicial sales, and in titles resting upon them, if they could be avoided because of such defects, which would have been matter of correction of course and of right, at any time before the sale was decreed. The statute now furnishes an easy and expeditious remedy for the correction of such defects after the sale, whenever they are discovered. R. C. § 2128. The decree is assailed, not because it does not show that the ground of sale was proven by depositions taken as in chancery cases, for the decree expressly recites, that the necessity of sale is “ proven to the satisfaction of the court by the oaths of Williams Conoway and William A. Wilson, who are disinterested witnesses, and whose testimony has been taken by depo [297] sitions upon direct interrogatories as in chancery courts,” but because the decree “fails to show the facts from which the conclusion results that the evidence on which it was based was taken as in chancery proceedings.” In other words, that the statement that the depositions were taken as in chancery courts is the statement of a conclusion from facts, and not a fact, and that the court should have stated the particular facts, that it might be ascertained whether the proper conclusion was drawn. There is no merit in the objection. The court certainly had jurisdiction to ascertain and declare whether the depositions were taken in conformity to the mode of taking depositions prevailing in courts of chancery. It has exercised the jurisdiction, ascertained and declared the fact, and its determination cannot be collaterally impeached. The objections urged to the sale and its confirmation, all refer to matters occurring after the jurisdiction of the court had attached. The most that can be said for them is, that they are errors or irregularities. Certainly they are not an excess or usurpation of jurisdiction, which would affect the decree of sale collaterally. If they exist, and are prejudicial to any party in interest, there are remedies appointed by law for their correction. It does not appear from the record that the administrator had reported to the court of probate the payment of the purchase-money, nor that the court had directed a conveyance of the title to the purchaser, or that such conveyance had been made. Until a report of the payment of the purchase-money, an order of the court of probate directing a conveyance and a conveyance in pursuance of such order, the legal title to lands descended remains in the heirs, who may maintain ejectment for their recovery. This has been too often asserted by this court to be regarded as an open question. Lighfoot v. Lewis, 1 Ala. 475 ; Cummings v. McCullough, 5 Ala. 324 ; Bonner v. Greenlee, 6 Ala. 411; Wallace v. Hall, 19 Ala. 367. These decisions rest upon the clear ground, that the legal title to the estate cannot be in abeyance. On the death of him in whom it resides, it descends to his heirs, or passes to his devisee, and there resides until divested by an appropriate judicial proceeding, which invests it in another, or is transferred by alienation. A judicial proceeding does not operate its divestiture until another is clothed with it. A conveyance decreed and executed is essential to the investiture of another. In the absence of evidence that there had been a decree of the court authorizing a conveyance to the purchaser, and a conveyance executed in pursuance of such decree, the appellants were entitled to a recovery on their legal title. If there [298] are equities resting in the purchaser which will render the recovery valueless to them, they must be asserted in a court of equity — of them a court of law cannot take cognizance. The court erred in the charge given, and in the refusal to charge as requested, and the judgment must be reversed and the cause remanded.