Swann v. Wadsworth

• Decision Date: 26 November 1943
• Docket Number: 7 Div. 768.
• Citation: 15 So.2d 735,245 Ala. 27
• Parties: SWANN v. WADSWORTH.
• Court: Alabama Supreme Court

15 So.2d 735

245 Ala. 27

SWANN v. WADSWORTH.

7 Div. 768.

Supreme Court of Alabama

November 26, 1943

Appeal from Probate Court, Etowah County; E.L. Hurst, Judge.

The petition filed in the probate court is as follows:

"Comes D.C. Wadsworth as guardian of Edwin Dale Crocheron, Jr., a minor, and reports to the court as follows:

"1.That petitioner is the duly appointed and acting guardian of Edwin Dale Crocheron, Jr., a minor eight years of age, having been appointed as such guardian by the Probate Court of Etowah County, Alabama;

"2.That said Edwin Dale Crocheron, Jr., owns an undivided one-half interest as tenant in common with J.M. Crocheron of Gadsden, Alabama, in and to the following described real estate, to-wit:

* * * * * *

"3.Your petitioner avers that there is no valid authority to sell the interest of said Edwin Dale Crocheron, Jr., in said above described real estate, vested in any person by the terms of any instrument under which said minor holds title in said real estate, nor is such sale prohibited or restricted by any instrument.

"4.Your petitioner, as guardian of said Edwin Dale Crocheron Jr., has joined with J.M. Crocheron as tenant in common in selling Parcel One to Mrs. Ann Philipson at and for the consideration of Ten Thousand and no/100 ($10,000.00) Dollars, of which amount One Thousand and no/100 ($1,000.00) Dollars has been paid in cash and the remainder to be paid upon closing the transaction and delivery of conveyance, and petitioner has joined with said tenant in common in selling said Parcel Two above described to S.D. Burroughs for the consideration of Twenty Two Hundred Fifty and no/100 ($2250.00) Dollars of which amount $250.00 has been paid in cash, the remainder to be paid upon closing the transaction and delivery of conveyance.Both of said sales have been made within three months prior to the filing of this report and were made at private sales for division of the proceeds thereof between said tenants in common;

"5.That said Edwin Dale Crocheron, Jr., is a minor eight years of age and resides in Little Rock Arkansas, and is in the custody of Mrs. Ann Jernigan, whose address is 4300 West 10th Street, Little Rock, Arkansas;

"6.That the nearest adult next of kin of said Edwin Dale Crocheron, Jr., residing within the State of Alabama and not interested in said sales is Mrs. Annette Crocheron Whorton of Gadsden, Alabama.

"7.That petitioner avers that no part of the above described parcels of real estate constitute any part of the homestead of the said Edwin Dale Crocheron, Jr., or is such property out of which the said Edwin Dale Crocheron, Jr., is entitled to have a homestead carved.

"The Premises Considered, petitioner prays that this Honorable Court will appoint a day for the hearing of this petition which day shall be not less than twenty days from the filing hereof and to give notice of said hearing, in accordance with the statutes of Alabama pertaining to such proceedings and that this Honorable Court will also appoint a guardian ad litem to represent said minor on said hearing.Petitioner further prays that at least ten days' notice of said hearing be given to Mrs. Annette Crocheron Whorton as the adult next of kin residing within the State and not interested in said sale, which notice shall be by personal service and that upon final hearing hereof this Honorable Court will make an order confirming said sales and upon it appearing to the Court that the full amount of the minor's interest in said sales has been paid in cash that petitioner as the guardian, be authorized to execute a deed of conveyance, conveying all the right, title and interest of said Edwin Dale Crocheron, Jr., in and to the lands above described."

Upon the day of the filing of said petition the Probate Court made an order setting a day for hearing, and appointed Julius S. Swann as guardian ad litem for the minor.The record sets out a "Notice of Appointment and Acceptance of Guardian ad Litem", addressed to said Swann, the acceptance being as follows: "I hereby accept the appointment of Guardian ad Litem for Edwin Dale Crocheron, Jr., a minor, to represent and protect his interests upon the hearing of the above named proceedings and hereby deny each and every allegation contained in said proceedings and demand proof thereof."The agreed statement of facts is as follows: "It is agreed that the evidence adduced on the hearing of the petition proved that the price obtained for the minor's interest in the real estate for which confirmation was sought was in keeping with its reasonable market value; that the interests of the minor were represented on said hearing by his Guardian ad Litem, who was present at said hearing and cross-examined witnesses and resisted confirmation of the sale; that Mrs. Annette Crocheron Whorton is the sole adult next of kin of said minor residing in this State and not interested in said sale and that she actually accepted service of notice of the day appointed for the hearing of said petition, by signing a waiver of notice in her own handwriting; that D.C. Wadsworth, as guardian for the said Edwin Dale Crocheron, Jr., a minor, executed deeds to the respective purchasers of said real estate and that each of said conveyances was confirmed by said Probate Court in the manner prescribed by Section 227,Title 47, Code of Alabama, 1940."

Dortch, Allen & Swann, of Gadsden, for appellant.

Hood, Inzer, Martin & Suttle, of Gadsden, for appellee.

THOMAS Justice.

Appeal from proceedings in the probate court touching the lands of tenants in common one of whom is a minor.

The appeal to this court is prosecuted for the minor by his guardian ad litem appointed by the probate court under the provisions of T. 7, § 786, Code 1940.The history of this statute from its early enactment to a recent date is contained in Ward v. Mathews,122 Ala. 188, 25 So. 50;Pollard v. Jackson,204 Ala. 31, 85 So. 431; 128 A.L.R. 1238, Note.

This court has jurisdiction to hear and determine this appeal from a decree of the probate court, touching two tracts of land, both of which lie in the County of Etowah.

Article 4, T. 47, § 219 et seq.,Code 1940, contains the recent statute providing for the sale of lands of minors and insane persons for partition and distribution among joint owners.

In Craig v. Cobb,231 Ala. 219, 164 So. 292, it was held under the Code of 1923, § 9357[which is of like effect as T. 47, § 219], that adult tenants in common are entitled to partition as a matter of right whether other tenants in common are minors or adults.

In Van Houtan v. Black et al.,191 Ala. 168, 67 So. 1008, 1009, it was held that the provisions of the statute are for a form and method of partition of such lands or lands so jointly held by tenants in common.Mr. Justice Sayre said for the court: " ' * * * It is that, inasmuch as the authority of the guardian to make, and of the court to permit, an absolute sale of the infant's lands is limited to the grant of powers conferred by the Legislature, the terms of such grant should be carefully followed.Sales made in utter disregard of the precautions wisely interposed by law are absolutely worthless.'Schouler, Dom.Rel., § 361.To invoke the jurisdiction of the probate court under the statute it was necessary that a petition be filed stating, however imperfectly, a case within the purview of the statute.Whitlow v. Echols, 78 Ala. [206] 207.It is enough to sustain the proceeding on collateral attack that the necessary facts are colorably or inferentially stated; but they must be stated in some way, and the relief sought must be within the power of the court.* * * "

In Denbo v. Sherrill et al.,241 Ala. 285, 2 So.2d 773, 774, a suit to quiet title by a bill in equity, the statute is again adverted to by the Chief Justice, saying that the sale of the lot in question was by way of exchange, the guardian for the minors considering it to their best interest, and the sale was confirmed by the lower court.He said:

" * * * Though statutory proceedings before the probate court(§ 9357 et seq.,Code 1923,Code 1940, Tit. 47, § 219 et seq.) were to a large extent followed, defendants insist no title passed by the deed of the guardian for lack of confirmation by the court as provided in Sections 9365,9366,Code 1923,Code 1940, Tit. 47, §§ 227, 228, and attention is directed to Woodall, et al. v. Orr,219 Ala. 681, 123 So. 220; * * *.

"But complainant answers by citation of authorities to the effect that a court of equity has the power to confirm a sale of realty of a minor if originally the court would have decreed the sale in the first instance as to the minor's best interest.Goodman v. Winter, 64 Ala. 410, 38 Am.Rep. 13. * * * "

In Higdon v. Higdon,243 Ala. 571, 11 So.2d 140, 141the bill was in equity to sell real estate for division among tenants in common and to quiet title to lands in which a minor was interested.The jurisdiction of that court was maintained under the statute.It is said: "Title 47, Section 210,Code 1940, empowers the probate court to sell for partition among tenants in common, and provides that application may be made by the guardian of a minor owning an interest as tenant in common.Title 47, Section 219 et seq., empowers a guardian to join other tenants in common in a sale of realty for division, publicly or privately, subject to...