Kemp v. Lyon

STONE, C. J. — In two respects, it is possible the rulings of the chancellor would have been reversed, if there had been an appeal, prosecuted in time. Those rulings are — first, the character and extent of the relief granted, considered in connection with the pleadings on which it was granted. The object of the bill was, to obtain a construction of the will of Joseph Kemp, deceased, and instructions for the administration of his estate, in its changed condition brought about by' the emancipation of slaves, wliich constituted a large part of his estate. The bill, framed only for these objects, was, perhaps, wanting in necessary averments to justify the decree tliat the lands should be sold for the payment of the unpaid balance of Mrs. Cahoon’s annuity. The second, possibly, faulty ruling,_was in allowing the amendment nunc pro tunc. The bill set forth certain lands, described by government-survey numbers, as belonging to the estate of the testator. The decree ordered a sale of the lands, by numbers corresponding to those stated'in the bill. The decree was rendered and enrolled. At a subsequent term of the court, the complainant moved the court, on written application, for leave to amend his bill and the decree, by striking from each the numbers of the land therein described, and inserting other numbers. It would seem to be clear, that this motion proposed to effect a very material change in the relief prayed for and obtained. Defendants might have been willing that the lands described in the original bill should be sold, and unwilling to have their rights to the substituted lands passed on [216] in that proceeding. Yet the motion was granted, without any notice to the defendants, so far as this record discloses. It is even questionable if the motion should have been granted, even if there had been notice. Such orders are granted, only on evidence which is matter of record, or quasi-reaová. — 1 Brick. Dig. 78-9, §§ 138, 139, 145, 147. The transcript in this case discloses no record, nor any thing having the properties or nature of a record, which could have authorized the amendment. No appeal, however, was taken from these rulings, and the time for such appeal has long since expired. After the decree was rendered, and after the amendment nunc pro tunc was petitioned for and allowed,, the register advertised and sold the lands, and Mrs. Cahoon was set down as the highest bidder and purchaser. Before the sale was reported to the chancellor, an agreement was made and reported to the register, by which Lyon, the present appellee, was substituted for Mrs. Cahoon as the purchaser. The register thereupon reported the sale, and, among other things, said : “ The said decree in this cause has been transferred by Mrs. M. A. R. Cahoon to one Joseph M. Lyon, by whom the court costs have been paid.” The report of sale, after having been read, lay over one day by order of the court, and was then confirmed. In the order of confirmation is this language: “ By consent of the parties, it is ordered by the court, that the report of the register of the sale of the land be, and it is hereby confirmed ; and Joseph M. Lyon being substituted, by consent of all the parties, for Mrs. Cahoon, the purchaser, it is ordered by the court, that the register make to him a deed to the land sold under the decree in this cause, and bid off by Mrs. M. A. R. Cahoon, upon his crediting the decree with the amount of the purchase-money of the land.” Lyon filed his petition in the court below, for a writ of assistance, or tobe let into the possession of the land. The will of testator had devised the lands in controversy to his four grandsons, and the petition alleged they were in possession. The petition, after setting forth petitioner’s purchase, averred further, that “said sale, having been complied with, was confirmed by said court; whereupon the register executed to petitioner a deed to the lands,” which had been described in a previous part of the petition. The four grandsons, devisees, had been made parties to the , suit, and they were made parties to the petition by service of notice. They resisted the relief prayed for in the petition, and set forth several grounds why the prayer should not be granted. They did not deny any thing set forth in the record as having been done. They'resisted, first, on the ground that the decree of salew^as outside of the scope and purview of the bill, and that the amend [217] ment of the bill and decree mono pro tuno was unauthorized. We think the consent decree of substitution and confirmation cured these irregularities. In the case of Tillman v. Spann, an attempt was made to get around the force of recitals of facts, found in the chancellor’s decree. The facts recited did not otherwise appear in the record, yet they were material to the extent of relief granted. We said: “We feel bound by the statement of the chancellor. . . If the chancellor fell into error, as to the nature and scope of the agreement, that should have been corrected in the court below.” — 68 Ala. 102. So, recitals in judgment-entries, of material matters not otherwise appearing, have always been regarded by this court as facts judicially ascertained. Nothing less than-this can uphold the absolute verity of records.— Gilbert v. Lane, 3 Por. 267 ; Moon v. Crowder, 72 Ala. 79 ; Hearn v. The State, 62 Ala. 218 ; Lee v. Sims, 65 Ala. 248 ; 2 Brick. Dig. 145, §§ 206, 209 ; Deslonde v. Darrington, 29 Ala. 92; Colbert v. Daniel, 32 Ala. 314; Catlin v. Gilder, 3 Ala. 536; Sloan v Frothingham, 65 Ala. 593 ; and s. c., 72 Ala. 589. The second objection urged was, that the purchase-money had not,been paid by Lyon. In the decretal order confirming tlie sale, the chancellor directed the register to make title to Lyon, the purchaser, “ upon his. crediting the decree with the amount of the purchase-money of the iand.” The petition for writ of assistance avers, that the register had made a deed to Lyon as purchaser. This the register had no authority to do, until tiie credit was entered. The answer does not deny-that the deed was made, but impliedly admits it. Presuming, as we must, that the register obeyed the chancellor’s instructions and did his duty, we hold this made a prima facie case of compliance by the purchaser, and cast on the defendants the burden of disproving it. No proof was offered on the subject, and the pr im a fade case is thereby left unrebutted. There is nothing in this objection. It was further urged, that the chancellor should not award the writ of assistance in the first instance, but should first have made an order, requiring defendants to surrender possession of the land. Possibly-, that is the customary and better practice. 2 Dan. Ch. Pr. 1062 ; Kershaw v. Thompson, 4 Johns. Ch. 609 ; Thompson v. Campbell, 57 Ala. 183 ; Hooper v. Yonge, 69 Ala. 484 ; Johnson v. Smith, 70 Ala. 108. This, however, must be largely a matter of discretion, dependent on the facts of each particular case. It would be harsh to issue the order in the first instance, unless it appear that the defendant in possession refuses to vacate the premises. It is, however, made to appear in this case, that the defendants in possession resist Lyon’s asserted right to be let into the occupancy. This shows thatpre [218] liminary orders would probably have been unavailing, and dispensed with any supposed necessity of invoking them. It was urged in defense of the petition, that Lyon had instituted his action of ejectment to recover possession, and that said suit was still pending. Defendants moved that complainant be put to his election, which remedy he would pursue. It is a sufficient answer to this, that we find in the record no evidence in support of this averment. This was defensive matter, in the nature of confession and avoidance, the proof of which was on the party who set it up. Failing to prove it. defendants can take nothing by it. The decree of the chancellor is affirmed.