Morring v. Tipton

Morring v. Tipton. Statutory Action of Ejectment. 1. Bale of lands for partition -under probate decree; eonclusivenessof decree; not subject to collateral attack for error or irregularity.—Where jurisdiction has been acquired by a court no mere error or irregularity in its exercise can make a judgment of the court void; and, therefore, where the proceedings in a prohate court of a sale of lands for partition, are, in all respects, regular, except a variance in one of the initial letters of the name of the commissioner appointed by the court and who conducted the sale, reported it to. the court for confirmation and executed the deed to the-purchaser, such variance constitutes a mere error or irregularity, and will not invalidate the decree of sale or render the deed to the purchaser void on collateral attack. 2. Ejectment; admissibility of deed in evidence.—In an action of ejectment, a deed offered in evidence which does not describe-the lands sued for, is inadmissible. Appeal from the Circuit Court of Madison. Tried before the Hon. H. C.. Speake. This was a statutory action of ejectment, brought by the appellant, Bailie Morring, against Amanda Tip-ton and Calvin Tipton. It was tried upon issue joined on the plea of not guilty. The evidence showed that the real estate in suit was on and prior to June 25, 180S, owned by one Adeline Elledge, who died on that date, leaving surviving her six children, to-wit, Ada Preston, Amanda Tipton, William Elledge, M-ollie Calahan, Malda Derrick and Mattie Parens. The plaintiff (appellant here) then offered in evidence a deed from Ada Preston and the other said heirs of Adeline Elledge, with the exception'of Amanda Tipton. This deed was excluded as evidence by tlie court on the mor bion of defendants (appellees here) upon the ground that the deed did not describe the lands sued for, and an exception was reserved by plaintiff to this ruling. The paintiff then offered in evidence - a deed from. S. M. Morring, as administratrix of G. A.. Morring, to William Elledge and Amanda Tipton. This deed purported to have been executed by the grantor in pursuance of a certain agreement between G. A. Morring- and Adeline Elledge, both deceased. It purported to convey to William Elledge five-sixths interest in the lands in suit and one-fifth interest in the same to Amanda Tiption. In connection with the deed plaintiff offered the testimony of the attorney who wrote the deed, showing that it was written with the advice and consent of the defendant, Galvin Tipton. The deed purported to have been executed under authority of section 1019 of the Code of Alabama. This deed was excluded as evidence by the court on motion of defendants upon the ground that there was no evidence in writing that any contract had been made by G. A. Morring witk Adeline Elledge to convey said lands, and an exception, was reserved by plaintiff to this ruling. Plaintiff then offered in evidence certain proceedings had in the probate court of Madison county,, whereby a sale of the real estate sued for was effected for partition among the joint owners or tenants in common thereof. These proceedings consisted of 1st, a petition filed hv William Elledge, which averred that petitioner owned 5-6 interest in the land, that Amanda Tipton owned 1-5 interest. (This petition properly describes tiie land, gives names, ages and interest of each heir.) 2d. Order of probate court fixing date for hearing; 3d. Decree of sale and appointing-commissioner to effect same; 4th, commission issued to commissioner; 5th, report of sale by commissioner;6th, decree of probate court confirming sale, and ordering execution of conveyance. Plaintiff tlien offered' in evidence a deed of T. M. Rainey, -commissioner, to S. M. Morring, the plaintiff. The plaintiff then offered to prove by F. T. Petty that “F. M. Ramey,”' who was appointed commissioner by the probate court of Madison county, and “T. M. Ramey”’ to whom said court issued thee ommission and who reported the sale and whom the court ordered to, and who did, execute the deed, were one and the same person. This evidence was objected to by defendants, and the objection was sustained, and the court refused to allow the introduction of such proof. To this action the plaintiff excepted. The defendants then moved the court to exclude from the evidence the deed from T. M. Ramey, commissioner, to S. M. Morring, the decree of the probate court confirming the sale made by T. M. Ramey, commissioner, the report made by said commissioner, and the commission issued to said F. M. Ramey, 'on the ground that under the decree appointing the commissioner, T. M. Ramey had no authority to make and report said sale and make a deed to the purchaser. The court sustained tiie objection, excluded the records and deed sought to he introduced, and plaintiff excepted. At the said sale under said probate proceedings plaintiff became the purchaser. The proceedings were in all other respects regular. By reason of the adverse ruling of the court upon the evidence as above set forth the plaintiff in the case took a non-suit, with bill of exceptions. Judgment was rendered for the defendants. The plaintiff appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved. S. S. Pleasants and Douglass Taylor, for appellant, cited 17 Amer. & Eng. Encyc. of Law (1st ed.), p. 800, 803, 817, 821; (Júnteloto v. Whitley, 85 Ala. 247; 'Whitlow v. Ecívols, 78 Ala. 206; (Japerton v. Hall, 83 Ala. 111. J. C. King, contra, cited Ex parte Rice, 102 Ala. 671; Beslonde v. Barrington, 29 Ala. 93; Wharton on Evidence, g§ 980, 982; Freeman on Judgments, § 275; Black on Judgments, § 625; (Ireenleaf on Evidence, g 528. [MAJORITY — TYSON, J.] TYSON, J. Jurisdiction having been obtained, no mere error or irregularity in its exercise can make the judgment void.—Freeman on Judgments, § .135, .and authorities cited in note 1. The probate court proceedings for the sale of the lands for partition through which the plaintiff derives her title were seemingly in all respects regular except the variance in one of the initial letters of the name of the commissioner appointed by the court, and who conducted the sale, reported it to the court for confirmation, and executed the deed to the purchaser. In the decree ordering the sale the commissioner appointed by the court to make the sale is F. M. Barney. The commission issued by the court was to T. M. Barney. The report of the sale is signed by T. M. Barney, and the deed is executed by T. M. Barney. The decree of confirmation, after reciting that “T. M. Barney, heretofore appointed by the court to sell,” etc., confirms .the sale made by him. Section 3182 provides, “if, upon the hearing, the court is satisfied, from the proof, that such property cannot be equitably divided or partitioned among the' parties in interest, it must decree the same to be sold, and make and issue all such orders as may be necessary to effect the sale thereof, and appoint a suitable commissioner,” etc. Section 3184 provides, “if the commissioner dies, resigns, or neglects, or refuses to act, at any time, before the sale, another may be substituted in his stead by the court, who shall have the same power in completing the sale as if originally appointed.” The sale of lands by commissioners acting under the order of the court, is not like the execution of a naked power, conferred by an individual. “It is the act of the court, through the commissioners as its ministerial agents, over whose acts it retains a controlling power. It is not concluded by their action, but may, in its discretion, set aside the sale when made, and direct another. It follows that the test of the correctness of such sales is not the action of the commissioners, but the ratification of the sale by the court.”—Jennings v. Jenkins, 9 Ala. 289. In Kellam v. Richards, 56 Ala. 240, it is said: “The commissioners appointed to conduct the sale were the officers of the court. The court was the vendor; and until confirmation, the sale Avas incomplete, subject to-be vacated for any irregularity which may have intervened, or because of inadequacy of consideration or because of fraud, or unfairness attending it. After-confirmation, mere irregularities are cured; tlie sale is complete, and, except for fraud in which the purchaser participates, his title cannot be disturbed. The decree of confirmation is the final decree in the proceeding for the sale, and cannot be collaterally impeached.” The statute above quoted (§ 3182) does not requiretlie court to appoint a commissioner in the decree ordering a sale of the lands. While doubtless it does contemplate that all orders made and issued necessary to effect the sale and the appointment of a suitable commissioner, shall be entered upon tlie minutes of the court, yet the failure to do so Avould be a mere irregularity that Avouid not affect the validity of the decree of confirmation Avhich is the final decree in the proceedings. So likewise should the commissioner originally appointed die, resign, or neglect or refuse to act, the failure of the court to enter an order upon the minutes reciting these facts and appointing another in his stead, Avould not render the final decree of confirmation of the sale Amid. Indeed, Ave are not prepared to say, if the particular cause Avas before.us on appeal, that the commission issued by the court to T. M. Ramey would be a reversible error. Certainly on collateral attack Ave will presume, if the two names be regarded as signifying two different persons, that F. hi. Ramey Avas dead or that he resigned or neglected or refused to act, and that the court appointed T. M. Rainey to act as commissioner in his stead. The court,erred in excluding the record of proceedings of the probate court and of the deed made by Ramey as commissioner to the plaintiff in obedience to the decree of confirmation. There aatis no error in excluding the deed from Preston and others to W. E. Ell edge for the reason that it does not describe tbe lands sued for. Reversed and remanded.