Bank of Columbia v. McElroy

• Citation: 231 Ala. 454,165 So. 105
• Decision Date: 19 December 1935
• Docket Number: 4 Div. 840
• Court: Supreme Court of Alabama
• Parties: BANK OF COLUMBIA et al. v. McELROY et al.

165 So. 105

231 Ala. 454

BANK OF COLUMBIA et al. v. McELROY et al.

4 Div. 840

Supreme Court of Alabama

December 19, 1935

Rehearing Denied Jan. 23, 1936

Appeal from Circuit Court, Houston County; D.C. Halstead, Judge.

Suit in equity by Brittie McElroy and another against Bank of Columbia, H.J. Morris, and Coleman Grice and others. From a decree for complainants, the named respondents appeal.

Affirmed.

Lawrence Oakley, of Dothan, for appellants.

L.A Farmer, of Dothan, for appellees.

BROWN Justice.

The complainants, appellees here, alleging that they are joint owners and tenants in common with some of the defendants, of the lands in controversy, stating the nature and extent of their respective interests, that the other defendants, the appellants here, claim to own some right, title, or interest in and to the property, filed the bill in this cause seeking to have the rights and interest of appellants determined, and a sale of the lands for division.

The appellants incorporated, in their answer to the bill as amended, several grounds of demurrer questioning its equity and sufficiency. The demurrers were overruled, and on submission for final decree the complainants were granted relief. This appeal is from that decree.

There is nothing in the averments of the bill showing that the complainants are guilty of laches, nor that they are estopped from seeking a sale of the lands so jointly owned for division among the joint owners, and having the rights of the appellants adjudicated and determined Walshe v. Dwight Mfg. Co., 178 Ala 310, 59 So. 630; Woods et al. v. Wright, 223 Ala 173, 134 So. 865; Richter v. Noll et al., 128 Ala. 198, 30 So. 740.

The bill was not without equity (Code 1923, § 9334; Clark et al. v. Whitfield, 213 Ala. 441, 105 So. 200; Stokes et al. v. Stokes et al., 212 Ala. 190, 101 So. 885; Wood et al. v. Barnett, 208 Ala. 295, 94 So. 338); nor is there anything appearing on the face of the bill that suggests that there is anything that complainants should do or offer to do, as a matter of equity, prerequisite to their right to have relief. Davis et al. v. Anderson, 218 Ala. 557, 119 So. 670; Brasher et al. v. Grayson, 217 Ala. 674, 117 So. 301; Cortner et al. v. Anderson, Clayton & Co. et al., 225 Ala. 575, 144 So. 443. The demurrers, therefore, were overruled without error.

The averments of the answer, relied on as the basis of the appellants' defenses of estoppel and laches, are, to state their substance, that Ernest Grice, who died August 3, 1924, was, up to the time of his death, seized and possessed of the lands in controversy; that his widow, Donie Grice, by a proceeding in the probate court of Houston county, commenced on May 27, 1929, of which the complainants and the other heirs of Ernest Grice had notice, had the lands set aside as exempt to her from administration and the payment of the debts of Grice's estate, vesting in her, as the widow, the full title thereto; that thereafter the appellant Morris purchased a part of said tract from said Donie Grice, for and in consideration of the payment to her of the sum of $500, and on September 10, 1930, said Donie Grice executed to said Morris a deed, which was entered of record in the probate office of Houston county on September 12, 1930, and said Morris has been in possession since his purchase; that said Donie Grice and Coleman Grice, her only child and heir at law, on December 18, 1928, executed a mortgage to the appellant Bank of Columbia, to secure an indebtedness of $191.75, which was filed for record and recorded on December 22, 1928, and on January 22, 1931, said Donie Grice and Coleman Grice executed to the said Bank of Columbia a mortgage for $330.13, which was also filed for record; that on January 24, 1934, said Donie Grice and Coleman Grice executed another mortgage for a consideration of $800, which was likewise filed for record and recorded in the appropriate office; that Donie Grice died intestate on, to wit, March 16, 1934, leaving as her only heir at law said Coleman Grice; that complainants "have waited ten years since the death of Ernest Grice, and have had knowledge for the past, to wit, 4 1/2 years that Donie Grice claims full title to said lands, and that she was selling and executing mortgage(s) to strangers for valuable consideration."

If, as alleged in the answer, the proceedings in the probate court were efficacious to vest in Donie Grice, the widow of Ernest Grice, deceased, the absolute title to the property, the facts pleaded would constitute a complete estoppel against the heirs of said Ernest Grice, deceased, to assert title to the property. But the difficulty with appellants' insistence is that when these averments are taken in connection with the proceedings in the probate court of Houston county, attached as exhibit to the answer, it conclusively appears that the jurisdiction of that court was not quickened into exercise by the filing of a petition alleging that the property which the said Donie Grice sought to have set apart as exempt to her from administration and the payment of debts was all the real estate owned by the said Ernest Grice at the time of his death. Such averment, under the law as settled, was one of the essential jurisdictional averments in such proceeding. Alford et al. v. Claborne et al., 229 Ala. 401, 157 So. 226; Miller et al. v. Thompson et al., 209 Ala. 469, 96 So. 481; Miller et al. v. First National Bank et al., 194 Ala. 477, 69 So. 916.

The court's jurisdiction not having been quickened into exercise in the mode provided by statute, its proceedings and judgments were void, and cannot be looked to to supply the omitted, essential jurisdictional averment. Alford et al. v. Claborne et al., supra; Wiley v. State, 117 Ala. 158, 23 So. 690.

The exemption proceedings in the probate court are not aided by section 9579 of the Code 1923, which declares that: "Courts of probate shall have original and general jurisdiction as to all matters and things mentioned in this section of the Code, and shall have original and general jurisdiction as to all other matters which may be conferred upon them by statute, unless the statute so conferring jurisdiction expressly makes the jurisdiction special or limited," etc. (Italics supplied.) Setting aside property as exempt from administration and the payment of debts is not one of the "matters" mentioned in the statute. The specific provisions of section 7948, requiring the application to state the facts enumerated by the statute, necessarily characterize the jurisdiction conferred as statutory and limited. Alford et al. v. Claborne et al., supra; Fowler v. Fowler et al., 219 Ala. 453, 122 So. 440.

The appellants further insist, when sections 7948, 7949, 7950 and 7951 are considered together, the fact that the property involved and sought to be set apart as exempt is all the property owned by the decedent at the time of his death is not an essential jurisdictional fact which the application must state. The basis of this argument is the proviso written into section 4227 of the Code of 1907, by the Code Commissioner, and brought forward in section 7951 of the Code of 1923: ...