Friedman v. Shamblin

• Decision Date: 03 February 1898
• Citation: 117 Ala. 454,23 So. 821
• Parties: FRIEDMAN ET AL. v. SHAMBLIN ET AL.
• Court: Alabama Supreme Court

23 So. 821

117 Ala. 454

FRIEDMAN ET AL. v. SHAMBLIN ET AL.

Supreme Court of Alabama

February 3, 1898

Appeal from chancery court, Tuscaloosa county; Thomas Cobbs Chancellor.

Bill by Friedman & Loveman against W. T. Shamblin and others. Upon the final submission of the cause, on the pleadings and proof, and chancellor rendered a decree denying the relief prayed for by the complainants, and ordered the bill dismissed. From this decree the complainants appeal, and assign the rendition thereof as error. Reversed.

Ormond Somerville, for appellants.

Jones Mayfield & Brown, for appellees.

BRICKELL C.J.

This is a bill in which the appellants were complainants, filed under the provisions of the act approved December 10, 1892 (Acts 1892-93, p. 42), authorizing any person who is in the peaceable possession of land, whether actual or constructive claiming to own the same, when his title thereto or to any part thereof is denied or disputed to maintain a suit in equity to determine the conflicting claims which may be preferred, and quiet the title to the lands. At the filing of the bill, neither of the parties thereto was in the actual possession of the land in controversy, so far as appears from the evidence, but the defendants had some time previously taken possession of a part of it, and were claiming title to the whole. The constructive possession of the complainants which exists, in contemplation of law, in the holder of the title, was, however, a sufficient possession upon which to found their right to maintain the bill. In a proceeding of this character it is not necessary for the complainant to prove title to all the land claimed by him, and described in the bill, in order to obtain relief. The statute contemplates the granting of relief as to such of the lands as the complainant shows title to; and when it appears that the title to a part of the land is in the complainant, while that to the remainder is in the defendant, the court should ascertain and declare these facts, and decree accordingly. If the defendant does not claim title to a part of the lands, he should specify in his answer the part disclaimed; and, if he fail to do so, he must be treated as claiming the whole. The evidence is without dispute that complainants had a superior title to an undivided one-half interest in the S.E. 1/4 and the S.W. 1/4 of S.E. 1/4 of section 1, township 21, range 8 W.; and, of consequence, they were entitled to a decree as to such undivided one-half interest. The court erred, therefore, in dismissing the bill, and rendering a decree in favor of the defendants for the whole of the lands in controversy.

Complainants claimed title to the other lands described in the complaint through an administrator's sale of the lands belonging to the insolvent estate of William Shamblin, deceased, in the year 1882. The defendants, claiming title as the children and heirs at law of said William Shamblin, charged that the estate owed no debts at the time of the sale or application therefor; that administration on the estate was unnecessary; that the claims against the estate reported by the administrator was simulated and fraudulent, having never been presented to the administrator nor filed as claims against the estate; and that complainants and their attorney had fraudulently procured the grant of administration on said estate and the rendition of a decree of insolvency, in order to obtain possession of the lands in controversy. It is further sought to impeach the validity of the administrator's sale on the ground of various irregularities in the proceedings, which, it is contended, rendered it absolutely void.

The charge of fraud on the part of complainants or their attorneys in connection with the administration of the estate, or the procuring and rendition of the decree of insolvency, and the sale of the lands, finds no support in any tendency of the evidence. The undisputed evidence is that, two years after the administrator's sale, complainants purchased the land from the purchaser at said sale, and that they had no knowledge whatever of the probate proceedings. If any fraud was perpetrated,-and the evidence, in our opinion, fails to show any,-these complainants are not shown to have had even the remotest connection with it. Nor does the evidence support the charge that the claims against the estate, as reported by the administrator, were simulated and fraudulent. The only claims mentioned in the administrator's report of insolvency were one in favor of John Sumner for the sum of $100, which was not proven nor allowed, and one for $600 or more in favor of Mary J. Williams, the widow of the intestate and mother of the defendants, while the value of the property belonging to the estate was reported to be less than $600. Notwithstanding the latter now testifies that the estate owed her nothing, and that she never presented any claim against it, we are satisfied from the evidence that she had such claim; that it was duly presented to the administrator by her; and that the same was paid to her out of the proceeds of the sale, partly in cash, and the balance by a credit allowed on the purchase money due for a part of the lands of the estate bid off and purchased by or for her at the sale. This claim had its origin, in part, in a purchase by her husband in his own name of lands belonging to her father's estate at an administrator's sale thereof, payment for which was made with her distributive share of said estate. This was a use by her husband of the corpus of her statutory estate, and created a debt in her favor. The only infirmity in the claim was that an action thereon would have been barred by the statute of limitations, if asserted, and that it was increased by the addition of interest, for which, under the law then in force, the husband incurred no liability by the use of the wife's money. The debt, however, still existed as a legal and moral obligation against the estate, and the failure to the administrator to assert the statute of limitations, and object to the allowance of interest, could not, in the absence of fraud or collusion, operate to render void the decree of insolvency.

Eliminating the issue of fraud raised by the answer, the only question remaining to be considered is that of the validity vel non of the probate proceedings under which the sale was had. The original file in the probate court relating to the proceedings had therein to sell the lands belonging to the estate of William Shamblin, deceased, was sent to this court along with the transcript by order of the chancellor, and from it appear the following facts: On February 1, 1882, the administrator of said estate filed an application, verified by affidavit, for the sale of all the lands of the estate for the payment of debts, setting forth therein the names, residences, and ages of the heirs, all of whom were minors, and a full description of the lands, and averring that the estate was indebted, that there was no personal property belonging to the estate, and that it was necessary to sell the lands for the payment of the debts. On March 18, 1882, he filed a report in writing, not verified by affidavit, stating that the estate was, to the best of his knowledge and belief, insolvent, together with a statement of all the property belonging to, and the claims against, the estate which had come to his knowledge, which statement showed the value of the property to be $580, and the amount of the claims to be $600 or more. The 21st day of April, 1882, was set to hear and determine the same, and notice was ordered to be given to the creditors, as required by the statute; and on said date a decree was rendered declaring the estate insolvent, appointing June 6, 1882, as the date for the administrator to make final settlement, and ordering notice of the decree to be given in the manner required by the statute. Subsequently, on a date which it is impossible to determine by an examination of the original petition, but which is shown by the record to have been February 1, 1882, which is clearly a mistake, the administrator filed a petition verified by affidavit, reciting that the estate had been declared insolvent, and that a former application had been filed for an order for the sale of the lands of the estate for the payment of debts, which had not been acted on by the court, and praying that "an order be granted decreeing that said lands shall be sold for the payment of debts, according to the laws made and provided in the cases of insolvent estates"; but no lands were described therein, nor were the names, residences, or ages of the heirs stated. On June 27, 1882, a decree was rendered ordering the sale of the lands, which recited that "due and legal notice of the nature of, and time set to hear, the petition, has been given, as required by law and the previous orders and decrees of this court made and entered in the premises, by citations personally served upon the heirs at law of William Shamblin, deceased, more than ten days before this day," and that "said estate has been declared insolvent, and the petition for this proceeding amended, so that said real estate hereinafter mentioned may be sold to pay the debts of said estate." On August 28, 1882, the administrator reported the sale of the lands and the payment of the purchase money; and on October 1, 1882, the sale was confirmed, and deeds ordered to be made to the purchasers.

The principal objections to the validity of this sale relied on by appellees are-First, that the report of insolvency was not verified by affidavit; second, that they had no notice of the sale...