Morgan v. Farned

• Decision Date: 28 February 1888
• Parties: MORGAN v. FARNED.
• Court: Alabama Supreme Court

3 So. 798

83 Ala. 367

MORGAN v. FARNED.

Supreme Court of Alabama

February 28, 1888

Appeal from circuit court, Franklin county; H. C. SPEAKE, Judge.

This was an action brought by the appellants, Peter S. Morgan and Joseph T. Morgan, against the appellee, William T. Farned for the recovery of a certain tract of land described in the complaint. Issue was joined on the plea of the general issue. On the trial of the case, as appears from the bill of exceptions, the plaintiffs showed that they were the only children of one Tailton Morgan, deceased, and claimed the lands in controversy as a part of their father's estate and coming to them by descent. They proved their father's title, without objection, and which was not disputed. It was shown that at the time of the death of the father of the plaintiffs he left his widow, their mother, and the plaintiffs surviving him. The defendant offered to introduce in evidence, as the foundation of his title to the lands in controversy, the proceedings of the probate court of the county in which the wife of the said Tailton Morgan deceased, and the mother of the plaintiffs, had petitioned the probate court for an order of sale of the very lands in controversy for partition among the heirs of the estate of the late Tailton Morgan, alleging that she and the plaintiffs, naming them in the petition, were joint owners or tenants in common of the lands. The plaintiff objected to the introduction of these proceedings in evidence, on the ground they were null, void, and of no effect, inasmuch as they failed to allege the residences of all the parties interested in the partition of the said lands, and that the petition failed to allege such facts as would give the probate court jurisdiction of the cause. The court overruled the objection of the plaintiffs, and allowed the petition for the sale of the lands in the probate court, the order of sale, and the deed made under such order of sale, to be introduced as evidence; whereupon the plaintiffs excepted. The defendant was shown to be the purchaser under the sale made by the order of the probate court, as shown by the record of the probate court, which was allowed to be introduced in evidence. The plaintiffs then moved the court again to exclude all the evidence pertaining to the probate court proceedings; which the court overruled, and the plaintiffs excepted. Upon the request of the defendant in writing, the court charged the jury that, "if they believed the evidence, they must find for the defendant;" to which charge the plaintiffs duly excepted. The rulings of the court upon the evidence, and the giving of the charge requested by the defendant, are here assigned as error.

James Jackson, for appellants.

W. I. Bullock, for appellee.

SOMERVILLE J.

1. The statute provides, where a proceeding is commenced in the probate court, either for the partition of property owned by tenants in common, or for the sale of such property for distribution among the same class, that the application must set forth the names of all the persons interested in the property, and their residences; giving a full and accurate description, if it be land, with a statement of the interest of each person in the same, and of the number of shares into which it is to be divided. And these allegations are generally held to be jurisdictional. McCorkle v. Rhea, 75 Ala. 213; Whitman v. Reese, 59 Ala. 532; Johnson v. Ray, 67 Ala. 603; Whitlow v. Echols, 78 Ala. 206; Ballard v. Johns, 80 Ala. 32.

2. The alleged defect pointed out in the present case is that the petition fails to set out the residences of the persons who are...