May v. Marks

SOMERYILLE, J. — The case is one of ejectment, in which the plaintiffs claim title as heirs at law of one William S. May, who is shown to have died seized and possessed of the lands in controversy. The defendant claims title through one Witcher, who purchased the land under a decree of the Probate Court [253] ordering a sale for the payment of the debts of the decedent.. The question presented is, whether the sale made on the application of Hunter, claiming to be the administrator of May’s estate, was void. This being a collateral assailment of the decree of sale, there can be, otherwise,-no recovery by the plaintiffs, mere reversible errors or irregularities availing them nothing in this action. It is insisted, in the first place, that the sale was void, because it is shown that Hunter was not administrator of May’s estate at the time he filed the petition, obtained the order of sale, or made the conveyance to Witcher, as purchaser. Before these proceedings transpired, the term of his administration had ceased ; and it is urged that this fact can be shown, to impeach the decree on collateral attack. It is true that Hunter’s letters of administration were granted to him as sheriff virtute officio, under the provisions of the statute (Code, 1876, §§2362-72); and, therefore, the grant attached to the office, and expired with it. This defect would have constituted an error, for which the decree of,the Probate Court could have been reversed on appeal, had it been thus directly assailed. But it is no ground for collateral attack, such as renders the order of sale absolutely void. .The precise point was so adjudged in Landford v. Dunklin & Reese, 71 Ala. 594. It was there held, that the granting of the order of sale involved a judicial determination of the fact that the petitioner was such administrator, .as alleged in his petition, and that the sale could not be impeached, in a collateral proceeding, on the ground that he was not in fact the administrator, or that the grant of administration as to him was invalid. We are content to adhere to the Conclusion reached in that case. — Freeman on Judgt. § 523 ; Freeman Void Jud. Sales, sec. 4, p. 21, note 25; Burke v. Mutch, 66 Ala. 568; Coltart v. Allen, 40 Ala. 155. The sale was not rendered void for failure to give notice to the heirs, either of the confirmation of the sale, the report of payment of the purchase-money, or of the order authorizing the administrator to make a conveyance. The conveyance was made to Witcher, on application of the administrator; and, as between the administrator a/nd the heirs, the proceedings were in rem, and not in personam. The rule has long been settled in this State, that, where the application of an administrator for the sale of lands contains all the allegations necessary to ' give the Probate Court jurisdiction, any failure on the part of the administrator to notify the heirs, or other adverse party in interest, as to any intermediate proceeding, will not avail, on collateral presentation, to avoid either the order, the judgment, or title acquired under it by a purchaser..— Wilburn v. McCalley, 63 Ala. 436, 445; Field v. Goldsby, 28 Ala. 218; [254] Satcher v. Satcher, 41 Ala. 26; Wyman v. Campbell, 6 Port 219. In Dugger v. Tayloe, 60 Ala. 504, it was held, however, that where the application for an order of conveyance was by the purchaser, as against the administrator, the proceeding became one in personam as to the parties, and notice to the administrator was essential, or else a decree rendered without it was void. In Anderson v. Bradley, 66 Ala. 263, the application was by a sub-purchaser, and notice to the heirs was held necessary, the question being presented on direct appeal from the decree of the Probate Court. We are of opinion, that the heirs can not attack the decree in question collaterally for want of notice, such as is shown in the record. Nor can they be permitted, in an action of ejectment against the purchaser at an administrator’s sale, to collaterally attack the decree of sale, by contradicting by oral evidence the recital in the proceedings of the Probate Court as to the fact of the payment of the purchase-money. It is very true that this has been permitted, on a bill filed by an administrator de bonis non, to enforce the payment of the purchase-money against the land. As against him, and for this particular purpose, the record is not held to be conclusive, but only prima facie correct. Wallace v. Nichols, 56 Ala. 321; Corbitt v. Clenny, 52 Ala. 480. Put the case is different, where the issue is one at law involving the legal title, and the effect of the oral evidence would be to contradict the record, and destroy or annul the title acquired under it. There is a clear distinction, on sound principles, between the two classes of cases, which is recognized in the past decisions of this court by our predecessors, and which we fully approve — Dugger v. Tayloe, 46 Ala. 320; Hudgens v. Cameron, 50 Ala. 399. There was no error in the charges given by the Circuit Court, and the judgment is affirmed.