King v. Gilreath

• Citation: 45 So. 89,154 Ala. 129
• Parties: KING ET AL. v. GILREATH.
• Decision Date: 25 June 1907
• Court: Supreme Court of Alabama

45 So. 89

154 Ala. 129

KING ET AL. v. GILREATH.

Supreme Court of Alabama

June 25, 1907

Rehearing Denied Dec. 19, 1907.

Appeal from Circuit Court, Walker County; A. A. Coleman, Judge.

Statutory ejectment by E. W. King and others, as administrators, etc against Belton Gilreath. From a judgment for defendant plaintiffs appeal. Affirmed.

Smith &amp Smith and M. L. Leith, for appellants.

Bankhead & Bankhead and Cabiniss & Bowie, for appellee.

McCLELLAN J.

Statutory ejectment by appellant against appellee to recover lands sold under decree of the probate court for the purpose of paying debts of the insolvent estate of one King, an heir of whom appellants' intestate was, and which were bought at the sale by the appellee, the sole creditor of the estate, and the purchase price of which was paid, and the sale on report to that effect confirmed and conveyance executed, as ordered, by crediting the amount of the bid upon the larger indebtedness held by the purchaser--creditor against the estate.

The appellants assert error, mainly, upon two propositions First, that the petitions for the sale in the probate court were void of jurisdictional averment, in that they only aver, as a compliance with the requirement, to jurisdiction to order the sale, that the personal assets are insufficient to pay the debts, that at an anterior date the estate was judicially declared insolvent; and, second, that the manner of payment of the purchase price rendered the sale void and did not divest the title of the heir. The attack upon the appellee's title, and the probate court proceeding affording it, being purely collateral, it has been long and well decided that, if jurisdiction attached, errors intervening therein will not avail to defeat rights acquired thereunder. The judicial declaration of insolvency of an estate, of course, concludes, as far as that proceeding may under our statutes, the insufficiency of both the real and personal property to pay the debts of the estate. Regardless of its effect upon the rights of the heir, he not being a party to the proceeding looking to the declaration of insolvency by the court, section 326 of the Code of 1896 clothes the judicial ascertainment of this financial status with an evidential power to make out a prima facie case for a decree of sale when the sale of the real estate of the estate is sought by the executor or administrator. In Meadows v. Meadows, 78 Ala. 242, this court treating this statute said: "We think the legislative intent was to substitute the decree of insolvency for proof that there were debts of the estate to be paid, and that the personal assets were insufficient therefor." In Chandler v. Wynne, 85 Ala. 310, 4 So. 656, it is further said: "We think, however, that the proper interpretation of the statute (now section 326) last referred to is that it makes only a prima facie case. To hold it conclusive would be, perhaps, to make it unconstitutional." By the very terms of section 329, such a judicial declaration of insolvency unreversed is vital throughout the administration of the estate. The petitions for the sale averred that some years before the estate was regularly declared insolvent. In other words, the fact or proof justifying, by the letter of the statute (section 326), a decree of sale for the payment of the debts, is set forth in the petitions to which reference must be had to determine whether the jurisdiction of the court came into play. We think that while the averment would probably have fallen under demurrer, and an overruling of it would have worked reversal on direct appeal, the petitions, by the allegation of the fact, rather than the statutory conclusion of insufficiency of personal assets to pay the debts, that the estate had been regularly declared...