Gilchrist v. Shackelford

STONE, J. The present bill was filed to enjoin an action of ejectment, and to obtain title to lands, in the nature of an application for specific performance. It rests on two distinct claims; first, purchase at tax-sale, and title derived thereunder. If Gilchrist'acquired any title under that purchase and conveyance, it was and is purely legal, and can not aid the equity ■of the present bill.' But neither the averments nor proofs of that sale and conveyance are sufficient to effect a devestiture of title for non-payment of taxes.—Oliver v. Robinson, 58 Ala. 46. The main ground of relief is the alleged purchase at administrator’s sale. On this question we feel constrained to hold, with the chancellor, that the complainant has failed to make out his case. The power in the administrator to sell the lands of his intestate is purely statutory; and unless he files a petition, containing the necessary averments to give the court jurisdiction, the Probate Court can make no valid order of sale. Save when the parties are all adults, and of sound mind, a sale made without an order of court therefor, based on a proper petition filed, and upon depositions taken in writing as in chancery cases, is absolutely void, and confers no title.—Satcher v. Satcher, 41 Ala. 26; Pettus v. McClannahan, 52 Ala. 55; Robertson v. Bradford, 70 Ala. 385. And even when the parties are all [13] adults, and of sound mind, all the foregoing requisites must be-conformed to, except that on collateral assault, it is not necessary that the record shall show that the proof was taken by deposition. The averments of the present bill, as to what the petition to the Probate Court contained, are fatally defective. The description of the laud in the petition for the order of sale, as-averred in the bill, falls below the requirements of the statute. Code of 1876, § 2450. The language employed in this description is, “Eighty acres of land, lying north of Courtland, and east of the Lamb’s Ferry road.” The statute- declares, the petition “ must describe the lands accurately.” The description, as averred in this bill, is void for uncertainty. There are many other jurisdictional averments, necessary to-a valid petition, which this bill fails to show were made. ’The-petition, to be sufficient, must expressly state one of the statutory grounds authorizing a sale. Without this, the court never acquires jurisdiction to order a sale; and a sale made under an-order, granted otherwise than on such petition, confers no title, legal or equitable. A bill, such as this, which seeks to perfect a title to lands purchased at administrator’s sale, must expressly aver the existence of the facts which gave the Probate Court jurisdiction to order the sale; and they must be expressly averred, not as conclusions, but as specified facts. “Appropriate allegations,” “proper parties,” “legal grounds,” are wholly insufficient. The bill should have set forth what were the allegations, who were the parties, and what was the ground on which the order was prayed.—Robertson v. Bradford, 70 Ala. 358; Tyson v. Brown, 65 Ala. 244. Sometimes these averments are supplied by making a transcript of the probate proceedings an exhibit to the bill, but that was not done in this case. And, when, as in this case, the averments of the bill are denied, the onus is on the complainant to prove them. This is done by the production of the probate record, properly authenticated, when it is in existence. If destroyed, it must, be proved as other disputed facts are proved.—McBryde v. Rhodes, 69 Ala. 133; Smith v. Wert, 64 Ala. 34. Both the averments and proof in this case are wholly insufficient. It is contended for appellant, that, eimn if the record fails to show the Probate Court acquired jurisdiction to order the sale, he is entitled to relief, because the estate got the benefit of the purchase-money, in having its debt cancelled to that extent. Bell v. Oraig, 52 Ala. 215, and Bland v. Bowie, 53 Ala. 152, are relied on in support of this position. A complete answer to this argument is found in the fact, that the bill contains no averment to let in such proof. Belief can not be granted on [14] allegations without proof, nor on proof without allegations. — 1 Prick. Dig. 743, §§ 1538 et seq. Affirmed.