Wallace v. Nichols' Admr.

MANNING, J. [After stating the facts as above] That there was a lien on the land for the payment of the part of the purchase-money for which the note or bond was given, is [324] clear. The records of the court to which the deed made to White directed the purchasers from Mm for information in regard to his title, showed that one half of the price he bid for the land was unpaid; and to secure payment of this, the law, which they must be presumed to know, held the land bound. This they were certified of by evidence of the highest kind. How stood the land in relation to the unpaid balance of the amount of the due-bill given for the cash installment? The order of the court for the sale of the land required the administrator to exact of the purchaser payment of one half of the price bid for it, in cash. This was one of the terms of sale, which the administrator reported that the purchaser had complied with. But the report, not being in this particular true, would not, by itself, exonerate the land, in favor of subsequent purchasers of the imperfect^ title of White, from remaining chargeable with all of the unpaid purchase-money. The title was not in White, nor was it in the administrator, nor had he any power by himself to dispose of it. It was in the heirs of the late Mr. Nichols. What effect, then, would the additional fact have, that the court declares, on its minutes, that it is shown by the administrator’s report to it, that one half of the purchase-money has been paid, and the other half sufficiently secured; whereupon it orders, that the sale made by the administrator to the purchaser, White, “ be ratified, and in all things confirmed, and said administrator convey to said purchaser all the right, title, and interest, which said Hughey Nichols, deceased, had in and to said land at the time of his death”? Leaving out of view, for the present, the part ordering a conveyance, what is the effect of the confirmation of the sale, following upon the recital that the terms had been complied with ? The section, 2095 of the Revised Code, under which the proceedings were had, is as follows: “.Whenever the court is satisfied that the sale was fairly conducted, and the land sold for an amount not greatly disproportionate to its real value, and the purchase-money is sufficiently secured, it must make an order confirming such sale.” The substantial thing to be here done, is the confirmation; and it is, in effect, enjoined upon the court that it be satisfied that the terms of sale are properly complied with, before passing its order for that purpose. It is to use care, but may act on the report of the administrator. It does not thereby adjudicate, that the cash installment has been paid, or that the security for the balance is good. The effect of the confirmation is only a notification to the parties that the court approves the contract, and authorizes them to proceed in the execution of it, [325] according to its terms. It does not in any manner operate on the title, nor exempt the land from the burden of being chargeable for the payment of the purchase-money. The administrator’s report, that he had received payment of one half of the price for which the land was sold, would have the effect, doubtless, of making him and his sureties responsible therefor, in favor of the creditors and distributees of the estate. As to those parties, the due-bill taken from the purchaser may be regarded as evidence, between him and the administrator, that the latter has in the hands of the purchaser a deposit of that sum. But all this does not operate to discharge the land in the possession of the latter, from the payment of the money for which the due-bill was given. That is prevented by the provisions of section 2096 of the Bevised Code, which is as follows: “ After such confirmation, and when the purchaser has paid the whole of the purchase-money, on his application, or that of the executor, or administrator, the court must order a conveyance to be made to such purchaser, by such executor, or administrator, or such other person as the court may appoint, conveying all right, title, and interest, which the deceased had in such lands at the time of his death.” Until he had paid “ the whole of the purchase-money,” the purchaser could not insist on a conveyance of the legal title to him. The law holds it bound as a security that such payment shall be made. Before that time, he would have only the possession, and an imperfect equity — a right arising out of a contract not yet executed, to demand the conveyance mentioned in the statute, when he had paid all of the price he had bid. And these are all the rights that sub-purchasers from him, ignorant of tire facts, would acquire. Against his equity would be the older one of the creditors and distributees of the estate, and of their trustee, the administrator cle bonis non, that the lands be» paid for; in respect to which equity the maxim is, qui prior est in tempore, potior est in jure. It may be supposed, however, that the sub-purchasers in this case bought, besides an equity, the legal title, because the court had'" ordered a conveyance of the land to "White, and a deed of it was thereupon made to him by the former administrator. But the law expressly declares, that the Probate Court should make such an order, only after “ the whole of the purchase-money” had been paid; and the record expressly shows that one half of it was not yet due, and that there was a note or bond therefor existing and outstanding. The legal title was not in the court, nor was it in the administrator. It existed in the heirs of* Nichols; and the power given to the court to convey it is a special author [326] ity, which, must be executed in pursuance of the statute granting it. In analogous cases it has been decided, that the administrator’s deed, though made in pursuance of an order of the Probate Court, was void.' — Corbitt v. Clenny, 52 Ala. 480; Sullens v. Wood, 44 Ala. 686. And, as the want of power in the court to make the order in this instance was expressly shown in the recitals upon which it was founded, we hold, that the order and the deed were void. White, and the sub-purchasers from him, could not, by proceedings so irregular and unauthorized, obtain the advantage of being clothed with a legal title, to the prejudice of the creditors and distributees, or of the administrator de bonis non. Our conclusion is, that the land remains subject to the payment of the entire purchase-money; and that complainant below was entitled to maintain a suit for the sale of it to pay the entire unpaid balance thereof. But the legal title to the land was in the heirs of the deceased, Nicbols. The Chancery Court, in such a case, in the interest of all the parties, will require to be empowered to convey the title complete, both for the purpose of obtaining by the sale the entire value of the property, and of investing the purchaser with a title that will be good both at law and in equity. The heirs of Nichols should have been made parties to the bill. The decree of the chancellor failed to prescribe the order in which a sale should be made of the several parcels of the land bought by the sub-purchasers from White, defendants in this cause. According to the rule on this subject, any of the land that White might own, should be first sold; then the parcels that were sold by him to others, in the inverse order of such sales. The parcels bought by appellant, Wallace, would, under this rule, be sold last, or so much thereof as might be necessary to pay the balance of the decree of the court then remaining unpaid. — Mobile Marine Dock Insurance Company v. Huder, 35 Ala. 717, and cases there referred to. The decree must be reversed, and the cause remanded. Brickell, C. J„ not sitting.