Hutchinson v. Till

• Decision Date: 23 October 1924
• Docket Number: 3 Div. 657.
• Parties: HUTCHINSON v. TILL.
• Court: Alabama Supreme Court

101 So. 676

212 Ala. 64

HUTCHINSON v. TILL.

3 Div. 657.

Supreme Court of Alabama

October 23, 1924

Appeal from Circuit Court, Butler County; Arthur E. Gamble, Judge.

Bill in equity by D. C. Till against Sophronia Hutchinson. Decree for complainant, and respondent appeals. Reversed and remanded.

Powell & Hamilton, of Greenville, for appellant.

Lane &amp Lane, of Greenville, for appellee.

BOULDIN J.

The bill is to cancel a cloud on title to real estate.

The case made by the record is this: Fred Stockman, through whom both parties claim the lands, filed his petition in the circuit court, in equity, and obtained a decree removing his disabilities of nonage. Code 1907, § 4505 et seq. Three days thereafter he executed a conveyance of the lands to the respondent, Sophronia Hutchinson. About three months thereafter he filed his petition or bill in the same court setting up that at the time of obtaining the decree removing his disabilities he had not arrived at the age of 18 years that he had now arrived at that age, and prayed that the decree removing his disabilities be vacated and annulled. On the same day an order or decree was entered purporting to vacate the former decree as prayed. On the same day he filed a second petition to have his disabilities of nonage removed and obtained a decree accordingly. Thereupon he executed a deed to the complainant, D. C. Till. The theory on which this bill is filed is that the court was without jurisdiction to render the first decree because the minor had not then reached the age of 18 years as prescribed by statute. It was upon this ground that the petition to vacate that decree was based. The petition averred that the former proceeding was in good faith, believing himself to be over 18 years of age, but that he had since learned this was a mistake. In the decree vacating the former proceeding, the court ascertained as a fact that the minor was not 18 years of age at the time the former decree removing his disabilities was made. An issue is here made on pleadings and proof as to his true age at the time of the first proceeding.

The vital question is whether the court or judge had jurisdiction to render the original decree.

The original petition to remove disabilities was filed under subdivision 2, § 4505, Code of 1907. It was averred therein that petitioner had neither father nor mother living, had no legal guardian, was over the age of 18 years, was a bona fide citizen of the county, was thoroughly competent to handle his own business, to contract and be contracted with, to buy and sell property, as though 21 years of age, owned an estate in lands, and that it would be to his interest to be relieved of the disabilities of nonage, and was followed by an appropriate prayer. The petition was signed and sworn to by petitioner. Proof by affidavits was taken, showing, among other things, that petitioner was over 18 years of age. Appropriate decree was rendered, reciting that he was over 18 years of age, removing his disabilities, and investing him with the powers specified in section 4509 of the Code of 1907, including the right to sell and convey real estate.

We have the case of a petition alleging the jurisdictional fact of petitioner's age, proof supporting it, and a decree finding it. By the common law persons became sui juris at 21 years of age. The Legislature has full power to prescribe a different age. This power was sometimes expressed by special statute, until forbidden by section 104, Constitution of 1901, subd. 2. A general statute removes the disabilities of married women over 18 years of age. Code, 1907, § 4499.

Chapter 96, Code of 1907, § 4505 et seq., provides for a judicial proceeding to that end.

The jurisdiction thus conferred is statutory and limited. The facts showing jurisdiction must affirmatively appear. Among these is the fact that the minor is over 18 years of age.

Cox v. Johnson, 80 Ala. 22, was a bill to cancel for fraud a deed from a minor to her guardian. The proceeding to remove her disabilities was under subdivision 3 of the statute, requiring a joint petition of guardian and minor. The guardian had presented the petition, signing the ward's name without authority. It was declared the decree was subject to collateral attack; that in a court of limited jurisdiction the recital of appearance of the parties could be contradicted by parol. The case was one of want of jurisdiction over the person.

Ex parte Singleton, 192 Ala. 117, 68 So. 253,

was a mandamus proceeding to require the chancellor to grant a decree removing petitioner's disabilities of nonage. It appeared the father of petitioner was living, and had not filed the petition, as required by subdivision 1 of section 4505. The case merely holds the facts did not make a case for relief.

In Ex parte Price, 192 Ala. 158, 68 So. 866, the application was made, by the person authorized to make it, to a court or judge authorized to receive it, and contained all the allegations of fact required to confer jurisdiction. The decree failed to expressly recite a finding that it was to the interest of the minor to have his disabilities removed. On certiorari to vacate the decree for want of jurisdiction, it was held that the decree need not recite the findings of fact on which it exercised the jurisdiction; that granting the relief imports a finding of the jurisdictional facts.

In Ketchum v. Faircloth-Segrest Co., 155 Ala. 256, 46 So. 476, it was declared that the decree need not in terms declare the disabilities removed, but is sufficient if it confers the powers named in the statute on removal of disabilities.

In Boykin v. Collins, 140 Ala. 407, 37 So. 248, it was further declared that failure to give the statutory notice under section 4507, Code of 1907, does not render the decree void on collateral attack.

All these cases recognize the general rule that, jurisdiction of the person and the subject-matter being shown, irregularities...