Van Houtan v. Black

• Citation: 191 Ala. 168,67 So. 1008
• Decision Date: 14 January 1915
• Docket Number: 939
• Parties: VAN HOUTAN v. BLACK et al.
• Court: Supreme Court of Alabama

67 So. 1008

191 Ala. 168

VAN HOUTAN v. BLACK et al.

No. 939

Supreme Court of Alabama

January 14, 1915

Rehearing Denied Feb. 4, 1915

Appeal from Chancery Court, Jefferson County; A.H. Benners Chancellor.

Bill by Abraham Van Houtan against H.H. Black and others, to quiet title to certain land. Judgment for respondents, and complainant appeals. Affirmed.

Sinnott & Keene and M. Lee Bonner, all of Birmingham, for appellant.

Burgin Jenkins & Brown, of Birmingham, for appellees.

SAYRE J.

Bill by appellant to settle the title to a fractional interest in a certain tract of land. Appellant claimed the interest in suit by virtue of a guardian's deed and the provisions of article 3 of the chapter on Partition, Code of 1907. Appellee Black claimed through a subsequent proceeding in the chancery court. Relief was awarded to appellee on his cross-bill, in which he contended that the proceeding under which appellant claimed was void for lack of jurisdiction in the probate court.

In the probate court the guardian of four minor children, who along with adult children of John T. Shugart, deceased, owned an undivided 4/105 interest in the land, represented that she on behalf of the minors had joined with the other owners of said fractional interest in a sale of that interest at a fair and reasonable price, and asked the court's approval of what she had done. The sale was thereupon approved and confirmed by decree of the probate court at the end of a proceeding which followed the form of the statute. It thus appears by necessary inference that in her agreement for a sale, or her sale subject to the court's approval the guardian did not join with "the other tenants in common," if by its requirement that there shall be such joinder the statute intends that the entire fee must be made to pass by such proceeding.

"One proposition may be laid down at the outset. 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. 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. Any argument that would sustain a decree without the limited power of the court to make, on the ground that the statute under which the court acted, or supposed itself to be acting, was dubious in its meaning, and that hence the court had the right to determine its own jurisdiction, is specious at best, and necessarily unsound. The law of every case is fixed. It is for the courts only to declare authoritatively the law as it is, however painful or uncertain the process often is. Parties charged with notice of the record of such proceedings must be conclusively presumed to know the law involved, for otherwise there could be no security of rights, no end of litigation.

Section 5253 of the Code, the section of article 3 of the chapter on Partition which declares the right conferred by that chapter, the rest being given to process and procedure, provides as follows:

"In all cases in which any person of unsound mind or any minor shall hold an interest as tenant in common with

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