Neville v. Kenney

DOWDELL, J. The appeal in this case is prosecuted from the decree of the chancery court dismissing complainant’s bill for Avant of equity on respondent’s motion. The purpose of the bill is the sale of the land described, for division between the complainant and respondent as tenants in common. The complainant [154] claims title to an undivided one-fourth interest, by descent from her grandfather, Frederick Fleming, deceased. The bill charges that the respondent acquired title to the land by purchase at a sale made by the administrator of Frederick Fleming, deceased, under a decree of the probate court of Mobile county. The petition filed by the administrator in the probate court for the sale of the land is made an exhibit to the bill, and it is charged that the name of the complainant, who was at the time an infant, was omitted from the petition as one of the heirs at law of the 'said Frederick Fleming, deceased, and that no guardian ad litem was appointed. It is also charged that the testimony was not taken in the cause as in Chancery cases, as provided by the statute. It is here contended by the appellant in the first place, that the petition filed by the administrator in the probate court shows on its face, that the court never acquired any jurisdiction in the proceeding to sell the land, and that, therefore, the decree of sale made by that court and all proceedings had thereunder are null and void. And in the second place, if the probate court acquired jurisdiction, that the decreé is invalid as to the complainant for the reason that she was never made a party to the proceedings had for the sale of the land. From the foregoing statement it will be seen that we have presented for consideration practically but two questions. The first is, as to whether or not the decree of the probate court for the sale of the land is void for want of jurisdiction; the second is, as to whether or not, after jurisdiction is acquired ¡by the probate court in a proceeding to sell land of the estate of a decedent, errors subsequently occurring in the proceedings will avoid the same. It may be here observed, that if the decree of the probate court is void for want of jurisdiction, it is void in toto, and no title could pass to the purchaser at the sale had under the decree; all subsequent proceedings being an absolute nullity. On this phase of the facts the bill would be wanting in equity, as there could be no parti [155] tion of tile land between complainant and respondant as joint owners. We will consider tlie two questions presented in the inverse order of their statement above. That a petition by an administrator to the probate court for the sale of lands of his intestate’s estate for the payment of debts, is essentially a proceeding in rein, has been so often decided 'by this court, that it is unnecessary to cite authorities. And it is equally as well settled that in such cases, after jurisdiction has attached upon the filing of a petition by the proper party, Avho is the administrator, containing jurisdictional averments, the decree of the court, for errors and irregularities subsequently occurring in the proceedings, cannot be brought into question upon a collateral attack. It has also been definitely determined by this court, that the failure to make an heir a party to the proceeding, Avhetlier adult or infant, is immaterial, does not render a decree of sale open to collateral attack, although such , an error may Avork a reversal on direct appeal. The names of the heirs not being an essential jurisdictional averment in the petition, their omission, when the decree is called into question collaterally, is deemed an error or irregularity intervening after jurisdiction acquired. — Lyons v. Hamner, 84 Ala. 197; Duval’s Heirs v. McLoskey, 1 Ala. 708; Duval’s Heirs v. P. M. Bank, 10 Ala. 636; Field’s Heirs v. Goldsby, 28 Ala. 218; Matheson’s Heirs v. Hearin, 29 Ala. 210; King v. Kent’s Heirs, 29 Ala. 542; Satcher v. Satcher, 41 Ala. 26. We come noAV to the consideration of the first proposition presented by appellant’s contention — did the probate court acquire jurisdiction 'in the proceedings had in that court for the sale of the land in question? This must be determined from the averments contained in the petition filed by the administrator in that court. The petition avus filed February 18th, 1879, No question is raised as to the averment in the petition of an insufficiency of personal property to pay debts, for it is distinctly averred that there was no personal property, but it is here urged that the averment in the petition as to the existence of debts of the estate is insufficient. The [156] averment of the petition as to debts, is as follows: “Your petitioner further shows that there are debts and liabilities still existing against said estate which will fully appear by schedule ‘A’ hereto annexed and which petitioner prays may be taken and considered as a part of this petition.” “Your petitioner, therefore, avers that the personal estate is insufficient to pay the debts thereof and that to pay the delbts now justly due and owing to sell that certain piece or lot of land which is described as follows,” etc. Schedule “A” contains a statement of the taxes due the city of Mobile for the years 1875-6-7-8, and the taxes due the State of Alabama for the year 1878. It is averred in the bill that Frederick Fleming died intestate December 2d, 1865, and that at the date of the filing of the petition the administration had been pending over thirteen years. From this statement in the bill it is now argued by counsel for appellant that the petition sIioavs on its 'face that the alleged indebtedness consisted of taxes, Avhich accrued after the death of the petitioner’s intestate, and was therefore not a debt of the intestate, and there being no debts, the probate court was without jurisdiction to decree a sale of land to the estate. While it may be true as a matter of fact, that there existed no debts at the time of the filing of the petition, for which the lands of the estate could be decréed to be sold, still upon a collateral attack, the existence or non-existence of debts as a fact, is not the proper inquiry in determining Avhether the jurisdiction of the probate court had attached. This question must be determined from the face of the record, and this record is made up of the petition and the decree based thereon. Nothing appears upon the face of the petition or decree shoAving when the intestate died, nor how long the administration had been pending. The filing of the petition by the proper party, the administrator, averring jurisdictional facts, confers jurisdiction on the court. The essential jurisdictional averments are the existence of the debts of the estate and the insufficiency of personal property to pay the same. The jurisdiction is not acquired by any order or decree of the court, but it attaches upon the filing of a proper petition by a proper party. And after juris [157] diction has attached upon the filing of such petition, and the court proceeds to a decree, although erroneous in the adjudication of the facts, the jurisdiction remains," unless it should appear upon the face of the decree that in the adjudication of the facts, the court ascertained some jurisdictional fact to he ivanting. It is insisted by counsel for appellant, that the court judicially knew, when the petition for the sale of the land was' filed by the administrator, that the administration had been pending in said court for thirteen years. Judicial knowledge of a fact is but a rule of evidence that dispenses with the necessity of offering evidence as to such fact. It can no more affect the question of the jurisdiction of the court attaching upon the filing of the petition, than the independent knowledge of the judge of the court of the nonexistence of the alleged indebtedness. In the averment of indebtedness it is not necessary to specify the debts; nor is any particular form of averment required. It is sufficient to allege in general terms the existence of the debts of the estate. The petition here did allege in general terms the existence of indebtedness and in addition particularized the same as taxes due and owing for certain years. There is nothing on the face of the petition showing when the intestate died or how long the administration had been pending. When considered alone, and this must be done, in determining the question of jurisdiction attaching, the reasonable conclusion to be reached as to sel edule “A” which is made a part of the petition taken in connection with other averment in the petition, is, that the taxes accrued before the death of the intestate. We are of the opinion, and so hold, that the petition contained the essential jurisdictional averments, and the court having acquired jurisdiction upon its filing and proceeded to decree, the decree is not open to collateral attack upon the allegations of the bill. While a bill should never be finally dismissed 'by decree rendered in vacation on motion to dismiss for want of equity without first giving the complainant an opportunity to amend, the reason of the rule ceases when it is manifest that the bill cannot be amended without entire departure so as to give it equity. Such is the case here. There is no error in the record, and the decree must be affirmed. •