Kellam v. Richards

BRIOKELL, C. J. We cannot doubt the correctness of the decree of the chancellor. If the Court of Probate had not jurisdiction to decree a sale of the lands, the appellant’s remedy is at law, not in equity. — Posey v. Conway, 10 Ala. 811. The jurisdiction, however, is conferred by the statutes, and was exercised in substantial conformity to the mode they prescribe. — R. C. §§ 3120-3126. The commissioners appointed to conduct the sale, were the officers of the court. The court was the vendor; and until confirmation, the sale was incomplete, subject to be vacated for any irregularity which may have intervened, or because of inadequacy of consideration, or because of fraud, or unfairness, attending it. After confirmation, mere irregularities are cured; the sale is complete, and, except for fraud, in which the purchaser participates, his title cannot be disturbed. The decree of confirmation is the final decree in the proceeding for the sale, and cannot be collaterally impeached. — Hutton v. Williams, 35 Ala. 503; Perkins v. Winter, 7 Ala. 855; Jennings v. Jenkins, 9 Ala. 285; Worthington v. McRoberts, 9 Ala. 247. The bill does not aver any fraud or collusion between the purchaser and the commissioners making the sale, nor that the lands were not sold for their full value. The evidence is clear and uncontradicted, that the price paid for them was their full value. The of the complaint against the [241] sale is, that the lands were cried off to Pate, while the commissioners reported Bichards as the purchaser, and to him the sale was confirmed, and a conveyance executed, under the decree of the court. The reason for the substitution of Bichards, as the purchaser, is fully shown to have been the failure of Pate to comply with his bid, after he had been repeatedly requested so to do. If he did not expressly assent to the substitution, he made no objection to, and has since acquiesced in it. However this may be, after confirmation of the sale, the fact cannot be collaterally inquired into — the decree imports absolute verity. It is also urged, that the purchase-money was not paid in cash. The decree of- confirmation imports that it was, and, until successfully impeached for fraud, and vacated by the Court of Probate, other tribunals must accept it as true. The decree of the chancellor is affirmed.