Cartelou v. Whitley

• Citation: 4 So. 610,85 Ala. 247
• Parties: CARTELOU v. WHITLEY ET AL.
• Decision Date: 28 June 1888
• Court: Supreme Court of Alabama

4 So. 610

85 Ala. 247

CARTELOU v. WHITLEY ET AL.

Supreme Court of Alabama

June 28, 1888

Appeal from city court of Birmingham; H. A. SHARPE, Judge.

Action of ejectment brought by the appellant, R. C. Cartelou against the appellees, for the recovery of an undivided fourth in a piece of land. Judgment for the defendants, and the plaintiff appeals.

R H. Fries, for appellant.

W M. Brooks, for appellee.

STONE C.J.

Four persons, all under 21 years of age, two of them married woman, were equal owners and tenants in common of the premises in controversy, being certain lots in the city of Birmingham. One of the tenants Mrs. Shepherd, through her husband as next friend, filed her petition in the probate court of the county in which the lots were situated, averring that they "cannot be equitably partitioned or divided without a sale." Code 1886, § 3253. The petition is in all respects regular, gives the names, ages, and residences of the other joint owners, and states which of them are married woman, with the names of their husbands. The probate court took jurisdiction of the case, granted an order of sale, and appointed commissioners to make the sale. The commissioners sold the lots. Whitley and another became the purchasers, paid the purchase money and received a conveyance, after the sale had been reported to the probate court and confirmed. With a single exception, after stated, everything done appears to have been regular; and only the one ground is here urged against the validity of the sale. Notices of the filing of the petition, and of the orders made, were issued to the other tenants in common, of whom Robert C. Cartelou, a minor, was one. He was living with his grandfather, and the notice was served on the grandfather as his custodian. A guardian ad litem was appointed for him, and he acted. It is contended for appellant that, because the notice was not personally served on Robert C., the minor, the whole proceedings are void, and the sale conferred no title. If this case had come before us on appeal from the order of sale, a very different question would have been presented. We might have felt it our duty to reverse such order. Hodges v. Wise, 16 Ala. 509; Clark v. Gilmer, 28 Ala. 265; Dow v. Whitman, 36 Ala. 604; Diston v. Hood, 83 Ala. 331, 3 South. Rep. 746. In this case, however, the question comes up collaterally, when a different rule prevails. It has long been settled in this state-too long to be...