Goodwin v. Sims

• Decision Date: 01 March 1889
• Citation: 5 So. 587,86 Ala. 102
• Parties: GOODWIN v. SIMS.
• Court: Alabama Supreme Court

5 So. 587

86 Ala. 102

GOODWIN v. SIMS.

Supreme Court of Alabama

March 1, 1889

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

This was a statutory action of ejectment, brought by the appellant, Henry T. Goodwin, as one of the heirs of Thomas Goodwin, deceased, against the appellee, Robert Sims, to recover lands owned by the said Thomas Goodwin at the time of his death. There was a judgment for defendant, and plaintiff appeals.

Plaintiff based his right to recover on the ground that he was one of the 12 heirs of said Thomas Goodwin, who died seised of the lands in controversy. The appellee claimed under a sale made by the administrator of the estate of said Goodwin, under an order of the probate court, for the purpose of division among the heirs. Under this order the administrator sold and conveyed by deed the lands in controversy to one Thomas Sims and Sims sold and conveyed to the appellee.

A Y. Harper, for appellant.

Hewitt, Walker & Porter, for appellee.

CLOPTON J.

The admission that Thomas Goodwin was seised and possessed of the land sued for at the time of his death, and that plaintiff who is appellant, is one of his 12 heirs, shows prima facie a title which entitles the plaintiff to recover an undivided one-twelfth interest, unless his title has been divested in some legal mode. In order to show that it had been divested, the defendant introduced in evidence, against the objection of plaintiff, a transcript of the proceedings in the probate court, under which the land was sold and conveyed to defendant by the administrator of the deceased. The question arises on the validity of the order of sale, which is impeached on the ground that the record does not affirmatively show the jurisdictional facts.

That the jurisdiction of the probate court to order a sale of the lands of a decedent is statutory and limited, and that it must appear from the record, has been placed, by the repeated decisions of this court, beyond the pale of discussion. No intendments will be made in favor of the jurisdiction from its mere exercise. But it is also well settled that the jurisdiction attaches when a petition is filed by a proper party, setting forth any of the statutory grounds for a sale, and that, jurisdiction having once attached, any intervening errors or irregularities in the proceedings will not avail to avoid the sale, when collaterally impeached. It has accordingly been held that though the failure to issue citation to the resident heirs, or to make publication to the non-residents, will be sufficient to reverse the proceedings on appeal, such failure does not affect the validity of the order of sale on a collateral attack. Field v. Goldsby, 28 Ala. 218. But no intendment of notice need be indulged in the present case. The record recites that the plaintiff, being a non-resident, was notified of the application for the sale, and of the day set for hearing the same, by publication in a newspaper published in the county. This recital is conclusive when not negatived nor falsified by the record itself.

It is further objected that no day was appointed for the hearing of the application before the decree of sale was made. There appears of record a preliminary order, setting a day for the hearing of the petition, and for the issue of citations to the resident heirs, and that the plaintiff, being a non-resident, be notified by publication. It is objected, however, that this order, as appears from the record, was made December 4, 1878, nearly 12 months after the decree of sale. The petition was verified December 4, 1877. The order recites that "on this day comes Joseph Martin, administrator of Thomas Goodwin, deceased, and presents to the court his petition in writing, and under oath, praying for an order to sell the lands," and appoints and sets January 15, 1878, as the day for hearing the petition. Though an error, which may have occurred in a duly-certified transcript of judicial proceedings, cannot be corrected or amended by parol evidence, when an inspection of the entire record discovers the nature and extent of the error, it corrects itself, and the court will regard it as corrected when the validity of the proceedings is collaterally impeached. King v. Martin, 67 Ala. 177. As the preliminary order recites that the petition was presented on the same day on which the order was made, and sets January 15, 1878, for the hearing of the petition, which was several months prior to the date of the order, as shown by the record, and as the record discloses that the petition was verified on the same day of the same month of the preceding year, it is manifest that a mistake occurred in the date of the preliminary order. The record corrects itself; otherhwise, it would present the absurdity of an order setting a day for the hearing of an application several months anterior to its rendition.

It is further objected that the record does not show affirmatively that evidence was taken as in chancery proceedings establishing the necessity for sale. The statute declares that no order for the sale of land belonging to any estate for the payment of debts or for division, must be made, when there are minors interested in such estate, unless the probate court has taken evidence by deposition as in chancery proceedings, showing the necessity for such sale, and that any order of sale made without a compliance with these statutory requisitions shall be wholly void. Code 1886, § 2114. The decree of sale recites: "And it appearing to the satisfaction of the court, from the allegations contained in the said petitions, and from the depositions of Thomas O. Ferguson and William Weems,...