Smith v. Gibson

• Decision Date: 03 January 1888
• Citation: 3 So. 321,83 Ala. 284
• Parties: SMITH v. GIBSON.
• Court: Alabama Supreme Court

3 So. 321

83 Ala. 284

SMITH v. GIBSON.

Supreme Court of Alabama

January 3, 1888

Appeal from circuit court, Walker county; S. H. SPROTT, Judge.

Action on a promissory note by Daniel J. Gibson against William J Smith. Verdict and judgment for plaintiff, and defendant appealed.

Syllabus by the Court.

Under an antenuptial contract between a widow and her intended second husband,--she owning an absolute fee in one-half of the property devised by the will of her former husband, and a contingent remainder in the other half, dependent on the death of an only grandchild before marriage or attainment of majority,--by which it is stipulated that, on the remainder becoming vested by the death of the grandchild during their coverture, "the same shall inure and belong to him, (the husband,) and thereafter they shall own the estate jointly and severally," an equitable interest in the remainder is acquired by the husband, the wife being seized of the legal title for his use; and this interest descends to his heir at law on his death after the remainder has become vested.

The contents of an antenuptial contract executed more than 20 years ago, an dalleged to have been destroyed by the wife after the death of the husband, held, to be established with sufficient certainty and precision by the testimony of an attorney who wrote a marriage contract for the husband a few days before the celebration of the marriage, and who states special circumstances calculated to impress the facts on his memory; corroborated by proof of execution by the subscribing witness, subsequent admissions by the wife, during the coverture and afterwards, as to the interest thereby vested in the husband, and her repeated declarations to her slaves, who were included in the contract, as detailed by them 20 years afterwards, in strict harmony with the other facts proved.

The probate court has no jurisdiction to grant an order for the sale of a decedent's lands, on application of an executor or administrator, either for the payment of debts or for distribution, when the will confers a power of sale on the executor, which passes to the administrator with the will annexed, (Code, 2218, 2447, 2449; Rev. Code, 1609, 2079 2221;) and when the petition shows that there is a will it must affirmatively appear that no power to sell is conferred by it.

A purchaser of lands at a sale under a probate decree, founded on a petition by an executor or administrator which does not contain averments necessary to give the court jurisdiction acquires no legal title, and can convey none to a subpurchaser; but he may acquire an equity, enforceable against the heirs, if they receive their share of the purchase money paid.

Protection against prior equities, as in favor of a purchaser for value without notice, is only extended to a purchaser of the legal title; but it may be doubted whether the doctrine of caveat emptor, as applied to judicial sales, does more than cover those defects which may...