Austin v. Willis

STONE, O. J.— The administrator of Martin Ashburn, deceased, filed a petition in the Probate Court for an order to sell the lands of intestate, for distribution among his children. The land was described by government numbers, and constituted a tract of near six hundred acres; and the ground stated for the application was, that the land “ could not be fairly, equitably and beneficially divided among the heirs of said estate, without a sale thereof.” No irregularity has been pointed out, and none has been perceived in the proceedings which led to the sale. Before the petition was filed for an order of sale, the widow had petitioned the Probate Court for an allotment to her of dower in said lands by metes and bounds. Under this petition proceedings were had, which resulted in the allotment to her of about two hundred acres of the land as dower. These proceedings appear to have conformed to the statute, with the single exception, that it does not appear that the report of allotment was ever confirmed by the court. — Code of 1886, § 1907; Adams v. Barron, 13 Ala. 205. At the sale under the order of the Probate Court, one Willis became the purchaser of .a part of the lands; and he having died, the present suit is against his heirs at law, for the recovery of that part of the lands which had been selected as the widow’s dower. The suit is a common-law ejectment, and [424] '■counts on two demises; one by the widow, now Mrs. Austin,, •and the other by Ashburn’s heirs at law. The court gave the general charge in favor of the defendant, and he had verdict and judgment. The question of most importance — the one most argued— is, whether the petition and order of sale embraced the lands sued for. The description given in the petition is: “the following lands, to-wit, situated in said countyhere follows a description of the entire tract, by government-survey numbers, “containing in all five hundred and ninety-six acres, more or less, less or except the widow’s dower, described' as follows, to-withere follows a description of the lands as given in the dower allotment, and which are part of the tract previously described. These are the lands sued for in this case. The question is, whether the exception or reservation is of the fee, or only of the dower, or life-estate. Less (minus) means, literally, taking from — talcing a smaller number, quantity or interest from a larger; the process of subtracting or withdrawing. Except means not including. An hundred less one, is the equivalent, or synonym of ninety and nine. A conveyance by numbers, or bjr metes and bounds, of a tract or lot of land, with an express reservation of some interest in the grantor, is as effectual to protect the title of the grantor to the part or interest reserved or excepted, as it is to convey title to the part not excepted. — 8 Washb. Real Property (5th Ed.). 433-4; 7 Amer. & Eng. Encyc. of law, 113, note 2; Duke St. Albans v. Ellis, 16 East, 352; Dand v. Kingscote, 6 Mees. & Weis. 174; Fowle v. Bigelow, 10 Mass. 379; Sprague v. Snow, 4 Pick. 54; Allen v. Scott, 21 Pick. 25; s. c., 32 Amer. Dec. 238; Stockbridge Iron Co. v. Hudson Iron Co., 107 Mass. 290, 321; Clark v. Cottrell, 42 N. Y. (Hand), 527. We hold, however, that the reservation, or exception’, was not of the fee, but of the dower, or life-estate. If we hold it was a reservation of the fee, we convict the pleader and the court of the absurdity of asking and granting an order to sell .a larger body of land described by numbers, less a small body of the same land, described also by numbers. Why insert the dower land in one paragraph, asking their sale, and withdraw them in the next, not asking their sale? Why name them at all, if no action was invoked in regard to them ? As well ask for an order to sell Black acre and White acre, less White acre. Placing the other construction on the language, it becomes reasonable and sensible. The petition asked for the sale of the entire tract, describing it, except the dower interest, life425 •estate in a specified part of it. We adopt the latter interpretation, and hold that only the life-estate, or dower interest, was reserved from sale.—Crosby v. Montgomery, 38 Ver. 238. As to this life-estate, there was no petition for its sale, and the Probate Court had no jurisdiction to order its sale.- Even if the court had ordered the sale (we think no ' such order was made to the dower interest), neither the sale nor conveyance would have vested any title in the purchaser. No administrator’s sale of land under an order of court can vest title to land, or to an interest in land, which is not included in the .averments and prayer of the petition. - It would seem that Mrs. Austin’s dower claim, tested by the Probate Court proceedings alone, is. not made good. The statute requires that the commissioners’ report of allotment .shall be made to the court, and be by the court confirmed, before the right vests in the dower.—Code of 1886, § 1907; Adams v. Barron, 13 Ala. 205; Barber v. Williams, 74 Ala. 331; Reeves v. Brooks, 80 Ala. 26. There is another principle, however, on which we hold the •demise in favor of Mrs. Austin can be maintained. Willis’ claim, traced to its source, rests on the administrator’s petition for the order of sale, and on the after proceedings, so far, and only so far as they followed that petition. The petition and those proceedings constitute his chain of title from Ashburn down. Whatever fact or infirmity that chain of title discloses, is traced to the knowledge of Willis, and taints or incumbers his title,‘as matter of law.—Johnson v. Thweatt, 18 Ala. 741; Dudley v. Witter, 46 Ala. 664. The petition and the order of sale except from their operation the widow’s dower, describing the lands allotted for the purpose. There was, therefore, no authority asked for, or granted, for the sale of the dower interest. If it was sold or conveyed, it was done without authority of law, and conveyed no title. So far as the Probate ■Court proceedings were concerned, the sale was as inoperative to convey the dower interest, as if the lands on which it rested had never been mentioned. But the principle goes further. Buying the lands under a petition and order which sought and directed the sale subject to the widow’s dower in the lands named, Willis, the purchaser, estopped himself to deny a proper allotment of the dower.—Washb. Real Property, and other authorities, supra. If Mrs. Austin received her share of the purchase-money, or any part of it, knowing the source from which it came, this would estop her from afterwards claiming the land; but such estoppel can not be set up at law. It requires a bill in chancery.—3 Brick. Dig. 448, § 26; Hall v. Caperton, 87 Ala. 285. [426] Willis was tenant of the lands for the year 1874, and was in possession of them. They were sold by the administrator, and bid off by him, Willis, in September, 1874. The sale was not confirmed until September 22, 1874. The present suit was instituted September 18, 1884, less than ten years after the confirmation of the sale. Being a judicial sale, it dates not from the bidding, but from the confirmation. Till then there was no sale.—Hutton v. Williams, 35 Ala. 503; Bland v. Bowie, 53 Ala. 157, 159; Fore v. McKenzie, 58 Ala. 115; McCully v. Chapman, Ib. 325; Lowe v. Guice, 69 Ala. 80. We feel at least safe in deciding that Willis can not be regarded as holding the lands in independent right, or adversely, until the sale was completed by its confirmation. This suit was not barred by ten years adverse holding. Testimony that Mrs. Austin consented for her dower interest to be sold, was improperly admitted in this action at law. Being present, and allowing one’s land to be sold, without objecting, or encouraging another to purchase, sometimes operates an estoppel in equity. It is not available at law, in a land suit. — 3 Brick. Dig. 448, §§. 30, 31, 33; 1 Brick. Dig. 736, § 7. The heirs of Martin Ashburn show no right to recover. Reversed and remanded.