Meadors v. Askew

BRICKELL, 0. J. The object of the bill is to vacate a sale of lands averred to.have been made by an executor under an order of the Court of Probate. In any aspect in which the case can be considered, whatever may be its merits, there are insuperable obstacles to a decree favorable to the appellants, which doubtless compelled the dismissal of the bill. A bill in equity must, of necessity, state with accuracy the right and title of the plaintiffs, and the grievance for which redress is sought. — Story’s Eq. PI. § 211. One title or right — for instance, that of heirs, cannot be stated in the bill, and a recovery had on proof of a title as devisees.— McKinley v. Irvine, 13 Ala. 698. It is in the capacity of heirs that the appellants claimed title to the lands sold, and it is their right as heirs only which they aver had been injuriously affected. The sale of which complaint is made, was not made under an order of the Court of Probate, as averred in the bill, but was made by the executor, claiming to exercise a power conferred by the will of the testator. It seems to [589] have been erroneously supposed, by the executor and tbe purchaser, that an order of sale from tbe Court of Probate would cure tbe want of power, if there was sucb want, to mate a private sale of the lands, and for that reason it was obtained; but it was not acted on,-and, in tbe conveyance to tbe purchaser, is simply referred to, as an authority in addition to that derived from tbe will. It is apparent that the appellants, not being entitled as heirs, cannot maintain the bill on tbe title of devisees. It is equally apparent tbat, claiming to vacate a sale made under a decree of tbe Court of Probate, tbey cannot ash tbe vacation of a sale not made under sucb decree, but in exercise of a power supposed to be conferred by tbe will. If tbe will does not confer tbe power, the sale is a nullity, and equity will not interfere to set it aside. — Posey v. Conway, 10 Ala. 811. If tbé will confers tbe power, but there has been fraud, or collusion between the executor and purchaser, the court would interfere, and vacate it. No inquiry would arise, as to the regularity or validity of any proceeding under the decree of the Court of Probate; nor, whether the jurisdiction resided in that court to set aside the sale, or in the Court of Chancery. These discrepancies between the averments of the bill and tbe facts as shown in the evidence, were called to the attention of tbe appellants, in tbe Court of Chancery; but no effort was made to remove and cure tbem, by an amendment conforming tbe pleadings to tbe evidence. Tbey compelled a dismissal of tbe bill, and tbe appellants must abide the result of pleading a case tbe evidence does not support. Let tbe decree be affirmed.