Bolen v. Hoven

DOWDELL, J. This is a statutory action in tbe nature of ejectment. Tbe plaintiff and defendant both claimed title to tbe land in question from a common source. The plaintiff, appellee here, rested her claim of title upon tbe fact that she was sole heir-at-law of tbe party, who was the common source. Tbe defendant, appellant here, sought to show title through administration proceedings had in tbe probate court of tbe estate of plaintiff’s ancestor, and mesne conveyances thereunder. These proceedings bad in tbe probate court, as well as the mesne conveyances, were excluded from evidence on tbe plaintiff’s objections, and these are the rulings now complained of as error. It is well settled that the probate court has no jurisdiction to sell the lands of an estate for the costs of an administration, or for a debt contracted by the administrator. — Beadle v. Steele, 86 Ala. 413, and authorities there cited. The records of tbe probate court which were offered in evidence failed to show that said court bad ever' acquired jurisdiction of the sale of tbe lands of the decedent’s estate, and all proceedings, therefore, bad thereunder were void. As no title could pass by sucb void [655] proceedings, the court committed no error in excluding the same from the evidence on the objection of plaintiff. It does not appear from the record that these proceedings had in the probate couiff, as well as the several conveyances under them, were offered in evidence otherwise than as muniments of title. It is here argued that the evidence was competent and admissible as color of title, but it does not appear that it was offered as such. The undisputed facts show that the plaintiff’s interest was that of a remainderman, and that she instituted her suit, for the recovery of the possession of the land in question, within a few months- after the death of the life-tenant. Until the termination of the life estate the remainderman had no right of action for the recovery of the possession of the land. The statute of limitations can never run against the remainderman during the existence of the life estate, for the reason that no cause or right of action is in the remainderman, nor can there be •any adverse possession as to him for like reason. There can' be no ouster of a remainderman who has neither the possession, nor right of possession, during life of the life tenant. — Pickett v. Pope, 74 Ala. 122; Edwards v. Bender, 121 Ala. 77; Washington, Admr. v. Norwood, 128 Ala. 388, and authorities there cited. The case at bar is- distinguishable 'from the case of Woodstock Iron Co. v. Fullenwider, 87 Ala. 584, relied on by appellant. In the case before us, there is nothing, upon which to invoke the doctrine of equitable estoppel— no application of the proceeds of sale of land to the payment of debts, etc., as was the case in Woodstock Iron Co. v. Fullenwider. We are not to be understood, in what- we have said in differentiating the present'case from the Woodstock-Fullemoider case, as re-affirming or re-committing ourselves to the doctrine there laid down. As the defendant was unable to trace title back to the common source, from which the bill of exceptions states that both plaintiff and defendant claimed right and title, no reversible error was committed in excluding, on plaintiff’s objection, the subsequent mesne conveyances offered by defendant. We find no error in the record and the judgment will be affirmed. Affirmed. [656] McClellan, C. J., Haralson and Denson, J.J., concurring.