Holton v. Rogers

• Decision Date: 11 February 1915
• Docket Number: 558
• Citation: 67 So. 1004,191 Ala. 48
• Parties: HOLTON et al. v. ROGERS.
• Court: Alabama Supreme Court

67 So. 1004

191 Ala. 48

HOLTON et al. v. ROGERS.

No. 558

Supreme Court of Alabama

February 11, 1915

Appeal from Circuit Court, Houston County; H.A. Pearce, Judge.

Ejectment by R.D. Holton and another against J.M. Rogers. Judgment for plaintiffs, and defendant appeals. Affirmed.

Order for sale of infants' real property for reinvestment held not open to collateral attack because of errors and irregularities.

Plaintiffs were the children of Jake Holton, who died testate in October, 1900, residing in what was then Henry, but is now Houston, county, and at the time he resided upon and occupied the lands sued for as a homestead, which did not exceed in value $2,000, and his personal property did not exceed $1,000 in value. He left a widow, who afterwards married and became Lena Deal, mother of plaintiffs, and who afterwards was appointed guardian of said plaintiffs. Her petition to sell the land is as follows: (1) That she is the mother of Robert D. Holton and Mattie D. Holton, minors under the age of 14 years, who reside with petitioner in said state and county. Petitioner further represents that said minors (naming them) have an estate in their own right of about the value of $200 the same consisting of an undivided two-thirds interest in and to the 60 acres of land situated in this county. On this petition letters of guardianship were issued to said Lena Deal. Later, after stating the facts as above and describing the real estate, it is alleged that petitioner is the widow of said J.M. Holton, and that her wards were the minor children of said Holton, deceased, and of petitioner; that said real estate descended to petitioner and her said wards share and share alike, as the widow and minor children of said J.M. Holton, under the statute of exemptions, the said 60 acres of land being all of the real estate owned by the said Holton at the time of his death. Petitioner avers that at the present time she can sell said real estate at and for the sum of $10 per acre, and that she can purchase other lands in lieu thereof for the sum of $5 per acre, which said last-named lands are just as productive as the lands set out in this petition, the difference in the price of said land as compared with the above-named land being that the lands she desires to purchase are a little further from the market than the lands she desires to sell, and on which she and her wards reside. Petitioner avers that with the proceeds of the land of her said wards she can obtain twice as much land, which as above stated, is as productive and fertile of soil as the lands they now own, and that it would be greatly to the advantage of her said wards, if it will permit her to sell said land and reinvest in other lands. Then followed the usual prayer for the appointment of a guardian ad litem, the taking of testimony, setting a day to hear the petition, aud such other proceedings and orders as might be necessary. The petition was granted, and an order of sale entered, a report of the sale made, showing that J.M. Rogers became the purchaser of the two-thirds interest in and to the land, the report was confirmed, and the deed was executed to said J.M. Rogers.

Espy & Farmer, of Dothan, for appellant.

E.H. Hill, of Dothan, for appallees.

MAYFIELD J.

Appellants sued appellee in ejectment to recover possession of 60 acres of land. The trial court on the whole evidence directed a verdict for defendant, which resulted in a judgment for defendant, from which plaintiffs prosecute this appeal.

There is but one material question involved on the appeal, to which question all others are subsidiary. That question is whether or not the proceedings in the probate court, by the guardian, to sell the lands in question, were void in such sense as to be so declared on collateral attack. The trial court ruled that the proceedings could not be declared void on collateral attack.

The reporter will set out the petition of the guardian for the sale of the land.

The statutes of this state confer jurisdiction on the probate courts to sell lands of their wards for several purposes, to pay debts, for maintenance, for reinvestment, and probably others. The sale in this instance was under section 4411 of the Code, for reinvestment. This section reads as follows:

"The court of probate may authorize the guardian to sell any property of the ward, and direct the investment of the proceeds in bonds, notes, or bills of exchange at

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