Bolen v. Hoven

• Citation: 39 So. 379,143 Ala. 652
• Parties: BOLEN v. HOVEN.
• Decision Date: 09 February 1905
• Court: Supreme Court of Alabama

39 So. 379

143 Ala. 652

BOLEN v. HOVEN.

Supreme Court of Alabama

February 9, 1905

On Rehearing, June 30, 1905.

Appeal from Circuit Court, Clarke County; John C. Anderson, Judge.

Action by Zedorah Hoven against John A. Bolen. Judgment for plaintiff. Defendant appeals. Affirmed.

This was a statutory action of ejectment, brought by the appellee Zedorah Hoven, against the appellant, John A. Bolen. Both parties claimed title from a common source; that is, one Odosia Stringer. On the trial the plaintiff proved that she was the only child and heir of Odosia Stringer, who died in 1868, leaving, surviving her, her husband, T. E. Stringer and the plaintiff; that T. E. Stringer died in the year 1902. The defendant offered in evidence: First, an application by one S. J. Parker for letters of administration de bonis non on the estate of Odosia Stringer, showing that a former administrator, E. H. Du Bose, had died, leaving unadministered assets of the estate. Second, an order of the probate court in which the administration was pending ordering the sale of the lands in controversy for payment of the debts of the estate of Odosia Stringer, which order stated that it was based on the petition therefor, filed by A. P. Du Bose, the administrator of the above-mentioned E. H Du Bose. S. J. Parker, the administrator de bonis non, is recited to have appeared and moved that the order of sale be granted. Defendant also offered in evidence the statement filed by Parker on his final settlement, which showed the only debts paid by him out of the proceeds of such sale were taxes on the property since his appointment and the costs of the administration. Also a deed made under such order to one John S. Moore, and mesne conveyances from him to the defendant. The court held the probate proceedings and deed under them to be void, and excluded them. The defendant offered evidence showing adverse possession by him and predecessors in title since the above deed to Moore. There were verdict and judgment for the plaintiff, from which the defendant appealed.

Mallory & Mallory, John I. Graham, and McLeod & Vaughan, for appellant.

Massey Wilson, for appellee.

DOWDELL J.

This is a statutory action in the nature of ejectment. The plaintiff and defendant both claimed title to the land in question from a common source. The plaintiff, appellee here, rested her claim of title upon the fact that she was sole heir at law of the party, who was the common source. The defendant, appellant here, sought to show title through administration proceedings had in the probate court of the estate of plaintiff's ancestor and mesne conveyances, thereunder. These proceedings had in the probate court, as well as the mesne conveyances, were excluded from evidence on the 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, 5 So. 169, and authorities there cited. The records of the probate court which were offered in evidence failed to show that said court had ever acquired jurisdiction of the sale of the lands of the decedent's estate, and all proceedings, therefore, had thereunder were void. As no title could pass by such void 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 court, 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...