Arnett v. Bailey

STONE J. The bill in this case admits that the complainant, at the time this suit was commenced, was not in possession of the lands in controversy. That is fatal to it, as a bill to remove a cloud from the title.—Rea v. Longstreet and Sedgwick, 54 Ala. 291; Daniel v. Stewart, at the last term. 2. Neither can the bill be maintained to recover possession of the lands, without averment, not found in this record, that Word, who holds the legal title in trust, refuses to bring an action for its recovery. If, as the bill avers, the sale under the decree of the Probate Court was void-, then the remedy at law was complete and ample, and the Court of Chancery has no jurisdiction. If, on the other hand, the petition for the order of sale is sufficient to give the Probate Court jurisdiction, then the sale and conveyance passed [439] the title from the devisees, and Mrs. Arnett has no remedy-in any court. — 1 Brick. Dig. 939, § 355. 3. The bill, however, prays partition of the lands, according to the provisions of the will of Mrs. Mahone. For that purpose, the Court of Chancery has jurisdiction, if the complainant has averred a clear title to an undivided interest in the lands.—Deloney v. Walker, 9 Por. 497; Horton v. Sledge, 29 Ala. 478; Ormond v. Martin, 37 Ala. 598; Sanders v. Robertson, December term, 1876. 4. The present case was disposed of on demurrer sustained to the bill. In such case, we can only look at the pleadings brought to view by the demurrer — viz., the bill and exhibits thereto, and the defects therein pointed out by the demurrers. The exhibits show an unusual state of facts. On the 28th day of October, 1867, the judge of probate of Limestone county made an order, reciting that the administrator with the will annexed had filed his petition in writing, sworn to, praying for an order “ to sell the land belonging to said estate for the purpose of paying the debts, charges, and cost of administration, there being an insufficiency of personal property for said purpose.” Said order set the second Monday in December, “ to hear and determine as to said prayer.” The second Monday in December, 1867, was the 9th day of the month ; forty-two days after making the order. Four days afterwards — November 1st— a written petition was sworn to by the administrator, before the judge of probate, and it was filed in his office on the next day, which was November 2d, 1867 ; just thirty-seven days before 9th December. On the 9th December, the order of sale was granted, and the lands were sold under it. The bill avers that a petition was filed before the order was made, October 28, and that the petition of November 2 was a second petition filed afterwards; that the proceedings, order and sale were had under the first petition, and that said first petition has been lost. The bill further avers, that saicl first petition was defective in the following particulars : that it did not allege insufficiency of personal property to pay the debts; did not allege that the will of testatrix gives no power to sell lands for the payment of debts, and that the personal property was insufficient therefor; did not give the name of Benjamin N. Word (one of the devisees in trust), as one of the devisees; did not give the residence of the heirs at law or devisees ; and did not state that Mrs. Arnett, complainant in this suit, was a married woman. The petition (found in the record), filed November 2d, 1867, refers to the will, of record in the court, and makes it a part of the petition. This supplies the averment, omitted [440] from the body of the petition, that the will of testatrix contained no power of sale for the payment of debts, as the will contains no such power.—Mosely v. Tuthill, 45 Ala. 621, 654. The other averments of the petition of November 2d, 1867, although somewhat informal, are substantially sufficient to uphold the jurisdiction of the Probate Court, under the uniform rulings of this court.—See King v. Kent, 29 Ala. 542; Satcher v. Satcher, 41 Ala. 26, 39; Wright v. Ware, 50 Ala. 549; Pettus v. McClannahan, 52 Ala. 55; 1 Brick. Dig. 939, 941, §§ 353, 355, 384, 385. 5. If the averments of the bill be true, there were two petitions ; one filed October 28, and the other November 2d. The first is averred to be defective; and if, as alleged, it failed to aver a want of power in the will to make sale for the payment of debts, it failed to assert the statutory ground for the sale of a testator’s lands ; and there was, therefore, no jurisdiction shown in the Probate Court to order the sale, and the order was void. Such defect is fatal, even on collateral presentation.— Code of Ala. § 2447; Ala. Conf. M. E. Church, South v. Price, 42 Ala. 39, 49. It is contended for defendant, appellee' in this court, that there was in fact but one petition, — that shown in the record, filed November 2d. If this be so, then only thirty-seven days intervened between the filing of the petition, and the day set for hearing it. We consider it unnecessary to decide the disputed question above. If two petitions were filed, as averred by complainant, then, when collaterally presented, we will consider one as an amendment of the other, and give effect to both of them as conjointly sustaining the jurisdiction.—Doe, ex dem. Saltonstall v. Riley, 28 Ala. 164, 181. If only the one copied in the record was filed, then the fact that less than forty days elapsed between the filing of the petition and the day set for the hearing is only matter of regularity, and does not' oust the jurisdiction.—Cox v. Davis, 17 Ala. 714. The fact, if it be such, that the order setting a day for the hearing preceded the filing of the petition, does not render the proceedings void. Yery liberal intendments are indulged, when such proceedings are collaterally presented, if the petition contain enough to give the court jurisdiction.—1 Brick. Dig. 941-2, §§ 385-6-7. Decree of the chancellor affirmed.