Rucker v. Tennessee Coal, Iron & Railroad

SAYRE, J. This is a statutory bill by the complainant, appellant here, to quiet title to land. The cause was submitted for final decree on the pleading and an agreed statement of facts, and from a final decree in favor of the defendant the present appeal is prosecuted. In the bill the land in controversy is described as S. W. % of the S. W. 14 of section 28, township1 17 S., range 4 W., and N. W.% of N. W. % of section 29, township 17 S., range 6 W., situated in Jefferson county, Ala. The court judicially knows that here are two separate tracts. There was no demurrer; but by its answer defendant brought to the court’s attention the fact that it claimed the separate tracts under distinct claims of title, and thereupon contends that the bill is multifarious and should have been dismissed for that reason on final hearing. There is no merit in the contention. Not only does the statute prohibit the defense unless — 464 — taken by demurrer (Code, § 3095), but one purpose of it, which is to prevent the loading of each defendant ■with an unnecessary burden of costs by swelling the pleadings with the state of the several claims of the •other defendants with which he has no connection, cannot be subserved except the defense be so taken. While admitting the defense in proper cases, the courts also keep in view the policy of preventing a multiplicity of suits. In the case presented by the bill, in which a single complainant proceeds against a single defendant in respect to separate tracts claimed, as the event bas shown, by the complainant under one title and by the defendant under titles much the same as to each tract, it is manifestly to the advantage of the parties that the controversy as to both tracts be settled in one suit. This land belonged in his lifetime to one Thomas Peters, who died in 1883. Both parties trace their title back to him as a common source. Neither party has liad possession, so that the issue is one of title, drawing to it the constructive possession of the property in question, with the burden upon complainant to show a legal title in order to maintain his bill. This burden the complainant undertook to discharge by showing a quitclaim of both tracts executed and delivered to him in 1892 by Thos. P. Henly, sole heir at law and devisee of Peters. But in 1885 the estate of Peters had been decreed to be insolvent by the chancery court of Jefferson to which the administration had been duly removed. One insistence on behalf of the appellee is that the decree of insolvency ipso facto divested all title to the real estate of Thomas Peters, deceased, out of his heir and devisee, and that therefore complainant took nothing by his deed from Henley. — 465 — As at common law, lands pass to the heir or devisee eo instante at the death of the ancestor, subject only to be interrupted by the exercise by the personal representative of the powers conferred on him by the statutes. The heir or devisee may alien the lands, the alienation being subject to and not frustrating the statutory powers of the personal representative. — Cruikshank v. Luttrell, 67 Ala. 318. The decree of insolvency under the Code of 1876, of force at the time, merely ascertained as between the personal representative and the creditors the status of the estate, and operated to transfer to the chancery court in the conduct of the administration exclusive jurisdiction of all claims against the estate. Under the statute of that date, creditors were the only persons to whom notice of the proceeding for a decree of insolvency was required, who were barred by the decree, or against whom it was evidence that the estate was insolvent. As to all others it was res inter alios acta, not affecting their rights, and not evidence as against them of any fact ascertained by it. — Randle v. Carter, 62 Ala. 102; McMillan v. Rushing, 80 Ala. 402; Kilgore v. Kilgore, 103 Ala. 614, 15 South. 897. Appellee relies upon Boddie v. Ward, 151 Ala. 198, 44 South. 105, as sustaining its contention that the decree of insolvency divested the legal title to the lands of the estate out of the heir. But we do not so read the case. There was no decision that a decree of insolvency vested the legal title of decedent's estate in the personal representative. There was in that case no occasion, nor can there be in any case any necessity, for such a doctrine. The personal representative may maintain ejectment in his own name for the lands of his intestate or testator; but this is not because any title resides in him, but because possession is necessary to the exercise of his statutory authority. — McKay v. Broad, 70 Ala. 377; Wilson — 466 — v. Kirkland, 172 Ala. 72, 55 South. 174. In the case relied upon the heir was attacking his own deed to the personal representative of his ancestor on the ground that it had been procured by fraud and undue influence. Notwithstanding a previous decree of insolvency, the statement of the opinion in one place is that “the administrator was constituted by the conveyance the repository of the legal title.” And the ruling was that, to show a beneficial interest in the property so conveyed, it was necessary for the heir to negative a recital of the deed to the effect that the estate had been judicially declared insolvent — by which, we take it, was meant to say that the fact recited must be negatived — “as well as affirm the solvency of the estate; and this, for the obvious reason that he is attacking the validity of a title consequent upon his deed.” So then, unless the title to these lands was divested out of Henley, or his vendee, by subsequent proceedings for the sale of them, had in the exercise of jurisdiction legally acquired and exercised in the course of administration, or, for reason urged and to be considered, Henley and his alienee, the complainant, are now estopped to deny the validity of those proceedings, Henley’s deed did pass the title of his ancestor to complainant, and he is entitled to a decree. On June 21, 1902, defendant (appellee) took Henley’s quitclaim to both the tracts in suit, and had the same recorded forthwith. Complainant’s deed was not recorded until August 1, 1906. By its deed defendant did not acquire anything which the grantor had previously conveyed to 'another, though the prior deed was not recorded. — Webb v. Elyton Land Co., 105 Ala. 471, 18 South. 178; Derrick v. Brown, 66 Ala. 162. “By the prevailing weight of authority the grantee in a quitclaim deed cannot be accorded the favored position of a purchaser for value and without notice; the reason — 467 — being- that the instrument purports to convey only such interest as the grantee may then have in the property, and thus by its own terms puts the purchaser upon inquiry as to any and all defects that may exist in the title, by way of outstanding incumbrances, equities, and the like.” — 23 Am. & Eng. Encyc. p. 510. Such is the law of this state. — Wood v. Holly Mfg. Co., 100 Ala. 326, 13 South. 948, 46 Am. St. Rep. 56; O’Neal v. Seixas, 85 Ala. 80, 4 South. 745; Barclift v. Lillie, 82 Ala. 319, 2 South. 120, authorities last above. But to the land in section 28 defendant has the administrator’s deed dated January 8, 1903. This deed ivas made under authority of the following- proceedings in the chancery court: In December, 1902, the administrator filed his petition, alleging the previous decree of insolvency and the continuance of that status of the estate of his decedent; “that in his lifetime and for many years previous to his death decedent dealt largely in the purchase and sale of lands in Jefferson and Walker counties; that from time to time he bought the entire estate or minerals in probably as much as 100,000 acres of land; that he made many sales, trades, and mortgages of same, and at the time of his death w-as in possession of a very small portion of this land so far as petitioner can ascertain. Your petitioner further states- that, since he ivas discharged as administrator in chief, he discovered that the records of deeds in Jefferson and Walker counties show- no conveyance by said decedent of the surface rights in and to a number of tracts of land, nor of the minerals and mineral rights in and to a few- tracts which appear of record to have been conveyed at one time or another to decedent.” Then follow-ed an averment that the defendant in this cause, the Tennessee Company, claimed title to said lands and ivas in adverse possession of a part of them, and a descrip — 468 — tion of the lands according to the government survey, amounting to about 2,500 acres and including the tract in controversy in section 28. The effect of further averments is that the Tennessee Company, defendant here, had offered to compromise the question of ownership by paying a price in excess, in administrator’s opinion, of any price decedent’s interest in the lands might be expected to bring at public sale. The prayer of the petition was that Thomas P. Henley — of whom it is to be inferred, from facts shown in various parts of the record, including a recital in his deed to complainant, in 1892, and from the course adopted by the court in acting on this petition, that he was of age at the time— be given notice, and that a reference be ordered to ascertain whether it would be to the interest of the estate and the creditors thereof to accept the proposed compromise. The decree of reference recites a submission by agreement of the solicitors for the administrator and Thomas P. Henley on the petition, and required notice of the time of holding the same to be given to Henley, “or else that same be held at such time and place as may be agreed on by said administrator and Thomas P. Henley or. their solicitors of record.” Thereafter on the coming .in of the register’s report reciting that it had been held in strict accordance with the decree, and favoring the compromise, a decree was passed on January 8, 1903, confirming the report and ordering a deed to defendant on its compliance with the terms proposed. Regarding this title defendant says it was acquired as the result of a due course of administration to which complainant’s grantor, Henley, was a party; that Henley is bound by the proceeding, and so must his grantee be bound. The general scope of administration “involves all which may be done rightfully in the preservation of the assets, and all which may be done legally — 469 — by the administrator in his dealings with creditors, distributees, or legatees, or which may be done by them in securing their rights.” (Martin v. Ellerbe’s Adm’r, 70 Ala. 326); but, as we have seen, the general course of administration, even when carried to a decree of insolvency, does not divest the title of the heir. For that a special proceeding is necessary. The special proceeding in this case by which defendant acquired its title was had long after Henley’s deed to complainant. But complainant took Henley’s title subject to the administrator’s right by proper proceedings to sell decedent’s title for the payment of debts. The question, then, is whether the proceeding for compromise was within the jurisdiction and competency of the chancery court. “Though the proceedings for the sale occurs in the general course of administration, it is a distinct proceeding in the nature of an action, in which the petition is the commencement and the order of sale is the judgment, * * * and the petition must furnish materials for the judgment.” — 2 Freeman on Void Judicial Sales, § 11. It has been repeatedly decided here that, in the absence of a substantial compliance with statutory provisions regulating and defining the grounds of jurisdiction, the proceedings in the probate court are coram non judice, and are void. — Wilburn v. McCalley, 63 Ala. 436. The existence of jurisdiction is not inferred from an attempt to exercise jurisdiction; the jurisdictional facts must affirmatively appear. — Goodwater Warehouse Co. v. Street, 137 Ala. 621, 34 South. 903. Nothing is presumed in favor of the record. — Wilson v. Holt, 83 Ala. 528, 3 South. 321. All this is because probate courts have no general authority to dispose of an estate in process of administration; their powers of disposition being special and limited. Applying the foregoing principle to the proceeding in this case, com — 470 — plainant contends tliat the petition or application for authority to close with the proposed compromise as a means of disposing of decedent’s interest was fatally defective and insufficient to confer jurisdiction, in that it failed to show that decedent died seised of an interest in the land. We have quoted the averment as to that. The statute prescribes no form of averment. It authorizes a sale of “the lands of an estate.” — Code, § 2621. On an appeal from an order of the probate court made in the course of the administration of this same estate, this court held sufficient an averment that “decedent died seised and possessed of the following described real estate, to wit, certain interests and rights, not definitely known to your petitioner in and to about 48 tracts of land,” etc., that is, this description of the character and extent of decedent’s interest was held sufficient, the court says: “It is of no consequence that the interests and rights of the decedent in and to the lands were not definitely known to the petitioner. The fact necessary to be averred is that the decedent owned either a legal or equitable right or interest in the lands sought to be sold.” — Henley v. Johnson, 134 Ala. 646, 32 South. 1009, 92 Am. St. Rep. 48. In that case, however, the petition was held to be defective for that the lands were not accurately described. The attack here made upon this proceeding is collateral. In such case this court, in the observance of that policy which favors the upholding of titles growing out of proceedings for the sale of land, especially where the heir is of full age and is made a party, has frequently held that the language of the petition through which jurisdiction is assumed should be construed most favorably to the maintenance of the decree of sale; that the petition will be taken as it is reasonable to infer that it was understood in the probate court. — Garrow v. Toxey, 171 Ala. 644, — 471 — 54 South. 557, and cases there referred to. There are others to the same effect. The authority of these cases, and the wise policy shown by them, require us to hold that the petition in this case sufficiently described decedent’s interest in the lands which it was the purpose of the administrator to have sold; would have conferred jurisdiction upon the probate court had the proceedings been there; and hence ivas sufficient to invoke the jurisdiction of chancery to which the administration had been duly removed. But appellant further observes of the petition that it was not a petition to sell lands of the decedent to pay debts, for it asked authority to carry into effect an agreement, reached by private negotiations, for a sale by way of compromise, and inquiries: From. what source did the court get its power to authorize any such sale or compromise? We answer: From its original general jurisdiction for the administration of estates. The administration had been removed into the chancery court by a proper decree. It lias been repeatedly said that in such a suit the chancellor will apply the law controlling the settlement of administrations in the court of probate, but will proceed according to1 the rules and practice of the court of equity. An examination of the cases in which it has been said the chancery court will apply the law of administrations as it prevails in the court of probate, says Brickell, C. J., in Ex parte Lunsford, 117 Ala. 221, 23 South. 528, “will show that no more was intended than that the court takes jurisdiction of the administration in the plight and condition in which it was in the court of probate, and will exercise whatever of statutory jurisdiction or authority that court could have exercised in drawing the administration to a final settlement. In Roy v. Roy, 159 Ala. 555, 48 South. 793, reviewing on appeal an order of sale — 472 — for distribution, it was held that, as the only authority for any court ordering the sale of a decedent’s land for distribution is found in the statute, the requirements of the statute must be followed in the chancery as well as in the probate court. This case was followed in Hardwick v. Hardwick, 164 Ala. 390, 51 South. 389. It seems to have been the purpose of the act of April 21/ 1911 (Gen. Acts 1911, p. 574), to change the rule of these cases. The rule of these cases, however, affected only sales for distribution. The power to order the sále of real estate for the payment of a decedent’s debts, where the personal estate is insufficient, is ascribed to chancery courts, and is generally exercised by them in this and those other states of this country in which such jurisdiction is not vested exclusively in the probate courts. — 2 Woener’s Law of Administration, § 463. This was not the case in England for the reason that there the lands of a decedent were not until recently liable for his debts. The practice óf the chancery court to authorize private sales, in those exceptional cases in which such method seems likely to produce the best results, is Avell established. — Dan. Ch. Pl. & Prac. p. 1293; Cox v. Price (Va.) 22 S. E. 512. Such a sale cannot prejudice the heir, for, as was observed in Roy v. Roy, supra, the sale, Avhether public or private, must be confirmed by the court after hearing the parties in interest. However those considerations noAV mentioned by the complainant as affecting the propriety of the sale under the conditions shown might have moved this court to a reversal on a direct attack by appeal, the petition filed was sufficient to invoke the jurisdiction and to authorize a sale in the method proposed thereby and adopted by the court, and on collateral attack the result of its proceeding is beyond question. The doctrine is summed up by Brickerl, C. J., in Friedman v. Shamblin, 117 — 473 — Ala. 462, 23 South. 823, in this language: “It has long been the settled doctrine of this court that such irregularities and defects in the proceedings to sell the lands of a decedent for the payment of debts are unavailable, in a collateral proceeding, to impeach the validity of the sale or the title of one claiming under it. This doctrine is a rule of property, Avhich judicial poiver cannot change. When the record affirmatiA,'ely shoAvs that the court had jurisdiction to order the sale by a petition setting forth the necessary jurisdictional facts, that the land Avas sold by an administrator under its order, the sale confirmed, the purchase money paid, and a deed executed to the purchaser in obedience to the court’s mandate, the action of the court is conclusive until vacated in a direct proceeding, and neither the sale nor the title of the purchaser acquired thereunder can be collaterally impeached on account of any irregularities in the proceedings.” Our conclusion is that the defendant shoAved the better title to the land in section 28. In 1905 the administrator again shoAved to the court that lie had discoArered still other lands in Avhich decedent appeared to have had an interest at the time of his death, many different parcels of land lying in Jefferson, Walker, Tuscaloosa, and Fayette counties being described in the petition, and asked that he be authorized to sell the same for the payment of claims against the estate Avhich had been alloAved. This petition also contained the folloAving aArerment: “Petitioner avers that it is advisable that the administration of said estate be settled as soon as may be, and that such funds as are in the hands of petitioner be distributed among those entitled thereto; that the petitioner, as aforesaid, believes that all of the land subject to any claim of said estate has been previously disposed of except that set out in section 4 of this petition; but that there may be — 474 — some parcels undiscovered. And petitioner avers tliat for the purpose of settling said estate and realizing as much as possible for the land hereinabove specifically described, it would be advisable and to the interest of said estate that same be sold together with all the lands in the state of Alabama, in or to which the said Thomas Peters had any right, title, or interest at the time of his death, and not heretofore conveyed under orders and decrees passed in this cause.” The petition alleged that “Tom P. Henley, whose residence is unknown to your petitioner, is the only heir of decedent.” On this petition proceedings were liad, on notice by publication, resulting in a decree for a public sale of the lands described in the petition and as well “all the lands situated in Jefferson, Walker, Tuscaloosa, and Fayette counties in which Thomas Peters, deceased, had any right, title, or interest at the time of his death, and which have not been heretofore conveyed under the decrees of this court.” Accordingly, a sale was had and confirmed, and a deed made to the purchaser, J. De B. Hooper, of the lands described and decedent’s interest in all other lands, not described, lying in said counties. The land in controversy, and lying in section 29, was not described in the petition, nor in the administrator’s deed, nor at any place in the record of the proceeding. It went, if at all, under the general description of any lands in which decedent may have had an interest at the time of his death. As for the.land included in this general designation, which was no description at all, we are of opinion that the petition was insufficient to confer jurisdiction, that the proceeding had thereon was ineffectual to pass title, and neither the heir nor those claiming under him are estopped to deny its validity. The insufficiency of the petition to confer jurisdiction on the probate court is palpable; The statute requires — 475 — that the application must describe the lands accurately. —Code, § 2622. And it would result from general principles, applicable alike in all courts, that in a proceeding to dispose of lands for the payment of debts — a proceeding in rem according to the uniform decisions of this court — the .res must he described in such way as to inform the court of the subject-matter of the jurisdiction to be exercised and the effect and application of the judgment to he rendered. Judgments respond to the issues proposed to the court, and they do not speak in the language of doubt or speculation. It is necessary to their validity that they should be certain and definite, or capable of being made so by proper construction, and to this end they should, in connection with the record, show the matter disposed of and the particular effect of the disposition made. — 23 Cyc. 691. Otherwise, in a proceeding Of this character, the heir cannot know of what land the decree deprives him, nor the purchaser what he has acquired. The petition and the judgment, so far as they attempt to deal with decedent’s interest in lands in no way described, are void for uncertainty. For these reasons the decree of the court below will be reversed and rendered. The decree will declare, as between the parties to this record,- defendant’s title to the land described in the bill as lying in section 28, and complainant’s title to the land described as in section 29. Reversed and rendered. All the Justices concur.