Sullivan v. Rabb

• Decision Date: 10 April 1889
• Citation: 86 Ala. 433,5 So. 746
• Parties: SULLIVAN ET AL. v. RABB ET AL.
• Court: Alabama Supreme Court

5 So. 746

86 Ala. 433

SULLIVAN ET AL. v. RABB ET AL.

Supreme Court of Alabama

April 10, 1889

Appeal from chancery court, Escambia county; JOHN A. FOSTER Chancellor.

Bill by M. H. Sullivan and E. S. Sullivan, executors, etc., of D. F Sullivan, deceased, against C. S. Rabb and others, to restrain a trespass to real estate. Bill dismissed, and complainants appeal.

.R. L. Campbell and J. M. Davison, for appellants.

T A. Hamilton and D. C. Anderson, for appellees.

STONE C.J.

The present bill was filed for an injunction against six or more persons, to restrain them from cutting, removing, and converting timber from a very large body of lands,-very many thousand acres. The lands are pine lands, in forest, uncleared, and uncultivated. Their chief value is in the pine timber growing on them. There is but one material question of fact upon which there is any dispute. Complainants claim that their testator, D. F. Sullivan, acquired possession of the lands in 1880, and continued in possession through his agents, tenants and employés until his death, in 1884, and that during this time he exercised acts of ownership, by making expensive improvements on the property for logging purposes. That he had cut and removed from the premises a very large quantity of the timber, and claimed the property as his own, and paid taxes on it. During this time it is not shown that any other person claimed any right or interest in the land, unless the attachment proceedings, after shown, amount to an adverse claim.

After the death of D. F. Sullivan, in June, 1884, until the sheriff sold the lands, after stated,-two years,-it is claimed that Sullivan's executors asserted the same rights, and exercised substantially the same acts of ownership, over the property as their testator had previously done, and no open adverse claim was asserted during that period. The testimony convinces us that these claims of appellants-complainants below-are substantially made good, and that up to the taking of the testimony in this cause the executors asserted the same claim of ownership, the same control, and maintained the same acts of possession, as they had done since the death of their testator.

The claim of defendant Rabb (the others hold under him) rests on his purchase of the lands at sheriff's sale in June, 1886. Soon after his purchase he employed agents who looked after the lands, with a view of protecting the timber from trespass and depredation, and the agents thus employed continued in this service until the present bill was filed, November, 1886. Rabb had also contracted with his several co-defendants for the sale to them of the timber standing on several of the sections of the land, and they had entered, or were about to enter, upon the work of felling and appropriating the timber. The bill charges, and the answer admits, that neither Rabb, nor any of his co-defendants, is able to respond in damages for the timber thus threatened to be taken, should it be found that complainants' claim to the same is valid. The bill also charges, and it is admitted, that Rabb was about to make sales of timber on other portions of the land. The disputed question of fact is whether complainants have shown they were in possession of the lands when they filed this bill.

The injunction prayed for and obtained restrained Rabb and his co-defendants from cutting and removing the timber. On final hearing, the chancellor dissolved the injunction, and dismissed the bill, and from that ruling the present appeal is prosecuted.

Counsel for appellees urge many reasons why the decree of the chancellor should be affirmed. The present suit is by executors, suing as such, and the subject of the suit is the ownership of lands in Alabama, and waste charged to be threatened or to have been committed upon them. D. F. Sullivan died in Florida, of which state he was at the time a resident. His will was first admitted to probate in the county and state of his residence, and then in Escambia county, in this state,-the county in which the lands in controversy lie; and the executors named in the will qualified as such in Alabama. The probate in this state conformed to the provisions of our statute, so far as the mere form of the proceedings is concerned. Code 1886, § 1985, (2313.)

It is contended to appellees that the Alabama probate and the qualification of the executors are each void, for the following reasons: Wills, to accomplish the purpose attempted in this case, are required by our statute to be "attested by at least two witnesses, who must subscribe their names thereto in the presence of the testator." Code 1886, § 1966, (2294.) D. F. Sullivan's will shows on its face, and in the Alabama probate, that it has but one subscribing witness. As an additional reason why we should declare the will void as to the lands, the Florida statute is put in evidence, by which it is shown that a will of real estate to be valid must have three or more subscribing witnesses. For these reasons, it is contended that the will is utterly ineffectual to convey lands in Alabama, that as to such lands Mr. Sullivan died intestate, and that for that reason alone the executors, as such, have no power or authority over the real estate in Alabama.

Under our statutory system, the personal representative is clothed with a very large power over the realty, and except in cases where the will vests the title in the executor, or clothes him with a personal trust, the powers of an administrator are co-extensive with those of an executor. Whether the will was ineffective or not to convey lands, Mr. Sullivan's residence and death in Florida, leaving property, real or personal, in Alabama, armed the probate court of the county in which it was situated with jurisdiction to appoint a personal representative of his estate, and whether in such appointment he was named executor, when it should have been administrator, or e converso, was and is merely a question of regularity, and did not render the appointment void. It would stand, unless reversed on direct appeal, or revoked by the authority which granted it. It could not be declared void on collateral attack. Broughton v. Bradley, 34 Ala. 694; Leatherwood v. Sullivan, 81 Ala. 458, 1 South. Rep. 718; Nicrosi v. Guily, 85 Ala. 365, ante, 156. And the fact that such appointment is made without bond does not make it void. In a proper case it would be ground for revoking it. Ex parte Maxwell, 37 Ala. 362; Cunningham v. Thomas, 59 Ala. 158; Leatherwood v. Sullivan, 81 Ala. 458, 1 South. Rep. 718.

It is contended, in the next place, that the personal representatives cannot maintain this suit. Our statutes confer on the personal representatives very large powers over the realty. They may possess themselves of it, even against the heir, that they may let it to rent, or that they may obtain an order and sell it for the payment of debts or for equal distribution. Calhoun v. Fletcher, 63 Ala. 574; Lee v. Downey, 68 Ala. 98; Wells v. Elliott, Id. 183; Landford v. Dunklin, 71 Ala. 594; Watson v. Prestwood, 79 Ala. 416; Leatherwood v. Sullivan, 81 Ala. 458, 1 South. Rep. 718; Pendley v. Madison, 83 Ala. 484, 3 South, Rep. 618; Nicrosi v. Guily, 85 Ala. 365, ante, 156.

Whether the heir could defend against a suit by the personal representative, on the ground that the lands are not needed for any purpose that falls within the purview of the latter's power, we need not inquire. That is not this case. It is manifest that no other person can raise that question. It sufficiently appears in this case that the executors, soon after they qualified in Alabama, took control of the property in controversy, and asserted such acts of ownership and possession as the nature of the property and its uses were susceptible of. The present action is rightly brought in their names, if it is otherwise maintainable.

It is contended for appellees that the title to the property in controversy was and is in Rabb, and for that reason the decree of the chancellor should be affirmed. The chancellor placed his ruling on this ground. The entire lands involved in this suit were originally the property of the Pensacola Lumber Company, a New York corporation. Both Sullivan and Rabb trace their title to it. In February, 1875, several persons, claiming to be creditors of the corporation, sued out attachments against it, and they were levied on the lands. Those attachments remained without ever having been abated or dissolved by any action of the court in which they were pending. Defense was made to the suits by counsel representing the Pensacola Lumber Company, and the suits continued some time on the docket of the circuit court in which they were instituted. The assignee in bankruptcy, after noticed, was never made a party to them. The claims were finally reduced to judgments against the Pensacola Lumber Company by the Escambia circuit (state) court, in which they were pending. Orders of sale were then issued to the sheriff commanding him to sell the lands so attached in satisfaction of the judgments. The sale was enjoined for a time under a bill filed in the circuit court of the United States, by persons representing the adverse interest in this case, but it was dismissed, and the injunction dissolved for want of jurisdiction in the court. Sargent v. Helton, 115 U.S. 348, 6 S.Ct. 78. That decision can...