[Norwood et al. v. Kirby's Admʼr.] 22d, 1877, when her letters were revoked, and letters of administration de bonis non were granted to Brown, the defendant in this suit: "That up to about the year 1870, said Lavinia Kirby, who was then the administratrix of said decedent's estate, continued to rent out the greater part of said lands, as such administratrix, from year to year, as the property of said estate; and so rented out said lands, as the property of said estate, because her intestate was at the time of his death, and for many years previous thereto had been, in the quiet possession thereof, cultivating and otherwise treating said land as his own; and your oratrix did not then know positively to whom said lands belonged. But, several years after the death of said intestate, and after your oratrix had been renting out said lands as the property of said estate, she was informed through various sources of a reliable character that said lands did not in fact at any time belong to said intestate, but that the title and right of possession in and to the same belonged to the United States, and she was also advised that the moneys arising from the rents of said lands were not assets of said intestate's estate; so that, and for said specified reasons, your oratrix, in or about the year 1870, ceased to rent out said lands as the property of said estate, but still continued in the quiet possession of said lots numbered from one to nine, parts of said tract of land, and continued from year to year, up to and including the year 1880, to rent out the same as her individual property; and at the time said actions of unlawful detainer were commenced, said Poe and McAnally were, and for several years prior thereto had been, the lessees of your oratrix for said lots of lands. At the time said actions of unlawful detainer were brought, and at the time of the trial thereof, said controversy as to the title to said land was still pending and undecided, and said Poe and McAnally were not allowed to raise any issue as to the title to said lands." On these facts, the complainants insisted that the judgments were rendered without any fault or negligence on the part of the defendants therein, and were inequitable; and prayed that they be perpetually enjoined. The chancellor dismissed the bill, on motion and demurrer, for want of equity; and his decree is now assigned as error. NORWOOD & NORWOOD, for appellants. ROBINSON & BROWN, and WATTS & SONS, contra. SOMERVILLE, J.-The bill in this case is fatally defective in several particulars, and was properly dismissed by the chancellor. The appellants, Poe and McAnally, were clearly estopped [Norwood et al. v. Kirby's Adm'r.] from denying the title of Brown, who sued for the possession of the lands in dispute in his trust capacity, as administrator of the estate of Joshua Kirby, deceased. They had entered upon these lands, originally, as the tenants of the estate, under a lease from Mrs. Lavinia Kirby, who, as the predecessor of Brown, was then acting as administratrix of her husband's estate, recognizing the lands as the property of the decedent, and dealing with them as such. In such cases, the title of the demised premises can not be put in dispute. The wrongful possession of the tenants holding over, and the privity of their relationship, were established by the actions of unlawful detainer, brought against them by the appellee. These issues could not be again tried, under the color of a chancery proceeding. Hamilton v. Adams, 15 Ala. 596. The law is settled, that where possession is obtained by a tenant, in recognition of the landlord's title, he is precluded from setting up an adverse title, with the view of defeating that of the landlord. If a tenant, after taking possession on the faith of his lease, acquires an outstanding title, adverse to his landlord, he will be required to first surrender possession, before he can be permitted to assert or claim under it.-Tyler on Eject. 550; Jackson v. Harsen, 17 Amer. Dec. 517; Blake v. Howe, 15 Ib. 681; Russell v. Erwin's Adm'r, 38 Ala. 44; 2 Brick. Dig. p. 200, SS 103-4. It is no answer to this view, that Mrs. Kirby asserted a personal claim to the lands, upon her alleged discovery that the title of the estate was defective, and continued to lease them to the same tenants as her private property. This she could not do, without a breach of her fiduciary duties, too clearly unwarrantable to be countenanced for a moment by a court of equity. If the tenants in possession are precluded from setting up, as against the estate, any adverse title acquired from a stranger, a fortiori would the rule apply to a title derived from one acting as administratrix, in a trust capacity, and herself attempting to create an adverse title by the assertion of an individual claim. For these reasons, and for others not necessary to be considered, the bill was entirely devoid of equity, and was properly dismissed. Affirmed. [Buchanan v. Thomason.] Buchanan v. Thomason. Application to set aside Probate Decree, rendered on Settlement of Accounts of Deceased Administrator. 70 401 128 651 1. Amending or setting aside judgments or decrees after expiration of 123 417 term.-A court of record has no power to alter, vary or annul its judg ments or decrees, after the expiration of the term at which they were rendered, except for the correction of clerical errors or omissions on evidence shown by the record; but, where a judgment or decree is void for want of jurisdiction, either of the subject-matter or of the parties, it may be vacated and set aside at a subsequent term, on the application of a party having rights and interests immediately involved. 2. Same-When fraud is not imputed, the want of jurisdiction must appear on the face of the record, except in the single case of the death of a party before the judgment was rendered. 3. Settlement of accounts of decrased administrator, by personal representative of both estates.-When an administrator has died without settling his accounts (Code, §§ 2537-40), and his personal representative becomes the administrator de bonis non of the intestate's estate, which is declared insolvent, the dual and antagonistic relations which he sustains take away the jurisdiction of the Probate Court to make a settlement with him of the accounts of the deceased administrator; and a settlement made by him in that court, being void on its face for want of jurisdiction, may be set aside at a subsequent term. APPEAL from the Circuit Court of St. Clair, on appeal from the Probate Court. The record does not show the name of the presiding judge. JNO. W. INZER, for appellant. BRICKELL, C. J.-This was an application to the Court of Probate of St. Clair, by the appellees, as heirs and next of kin of Jacob R. Wood, deceased, commenced on the 18th day of August, 1875, to vacate and annul certain proceedings, orders and decrees, had and made in said court in June, 1869, in which the appellant, as administratrix of H. R. Buchanan, deceased, who in his life was administrator in chief of said Jacob R. Wood, was the actor. These proceedings were had under the statute (R. C. § 2165-68; Code of 1876, 2537– 40), by the appellant as administratrix of II. R. Buchanan, for a final settlement of the administration of her intestate on the estate of Jacob R. Wood, deceased, and progressed to a final decree. The validity of these proceedings is questioned, on the single ground, that during their pendency, and when the [Buchanan v. Thomason.] final decree was rendered, the appellant occupied the dual relation of administrator of Buchanan, charged with the duty of making the settlement of his administration, and of adminis trator de bonis non of Wood, a necessary adverse party to such settlement, charged with the duty of compelling an account and settlement, in whose favor a decree must have been rendered, for any balance found due on the settlement. It is insisted that, because of this dual relation, the Court of Probate had not jurisdiction of the settlement-that jurisdiction resided only in the Court of Chancery. The principle has been long regarded as settled, that a court is without power to alter, vary, or annnl final judgments or decrees, after the close of the term at which they may have been rendered, unless it be for the mere correction of clerical errors or omissions. During the term, the proceedings are in fieri; after its expiration, they are final, and the jurisdiction of the court is exhausted, except for amendment, or the correction of clerical misprisions, the record furnishing the evidence on which the amendment or correction can be made--Johnson e. Glasscock, 2 Ala. 522; Noland v. Lock, 16 Ala. 52; Slatter v. Glover, 14 Ala. 648: Harris v. Billingslea, 18 Ala. 438; Griffin v. Griffin, 40 Ala. 296; Pettus v. McClanahan, 52 Ala. 55. The principle is as applicable to this, as to other courts of record; and after the final adjournment of the term, the only power the court can, or will exercise over its records, is that of correcting clerical errors.-Van Dyke v. State, 22 Ala. 57. When, however, a court has rendered a judgment or decree void on its face, either from a want of jurisdiction of the subject-matter, or of the parties, a due regard to its own dignity, the protection of its officers, the prevention of the abuse of its process, and of injustice to its suitors, and the preservation of the sanctity of the judgments it may rightfully render, demand that it should, on a proper application, coming from a party having rights and interests immediately involved, at any time subsequent to its rendition, vacate such judgment or decree. If, as in the present case, fraud is not imputed-no more than usurpation or excess of jurisdiction is the gravamen of complaint the invalidity of the judgment must be apparent on the face of the record. It can not be shown by matter extrinsic, or dehors the record, except in the event of the death of either party to be affected, when the judgment or decree was rendered.-Er parte Sanford, 5 Ala. 562; Johnson v. Johnson, 40 Ala. 247; Pettus v. McClanahan, 52 Ala. 55. In Hays v. Cockrell, 41 Ala. 75, this court decided, that when a case was situated, as to parties, like the present, the Court of Probate could not render a valid decree against the [Chapman v. Fields.] representative of the decedent, for any balance found due on the decedent's administration, and, of consequence, that the jurisdiction of such a settlement resides only in a court of equity. The case was before this court on appeal, the record disclosing the dual relation of the personal representative, and that from the deceased administrator there was a balance due, which ought, under the circumstances of the case, to have been decreed to the personal representative, and not to the distributees of the intestate. From that case, the present has no distinguishable feature. The insolvency of the estate of Wood, judicially ascertained, rendered it indispensable that the appellant, in the capacity of administratrix de bonis non, should be a party, and the sole proper party representing the estate, on the final settlement of the administration in chief. As administratrix of her husband, the administrator in chief, in that capacity, the appellant alone could become the actor, or was bound to the duty of making settlement of the administration. In this condition of things, resulting from the antagonistic relations, and conflicting rights and duties, in which the appellant was involved, according to the case cited (which was followed in Carswell v. Spencer, 44 Ala. 204), the Court of Probate was divested of jurisdiction of the subject-matter-the settlement of the administration in chief. The want of jurisdiction was apparent on the face of the record, and there was no error in vacating the settlement. Affirmed. Chapman. Fields. Bill in Equity for Assignment of Dower, and Account of 1. Reformation of mortgage in equity; when takes effect, as against widow, not party to suit.-When a conveyance or contract is reformed in equity, on the ground of mistake, the reformation relates back, for many purposes, as between the immediate parties, and takes effect as of the day the writing was first executed; but, as against the widow of the deceased mortgagor, claiming dower in lands which were omitted from the mortgage by mistake, a decree correcting the mistake and foreclosing the mortgage, she not being a party to the suit, and not being charged with notice of the mistake, takes effect only from the day on which it is rendered. If such decree were allowed to relate back, her right of dower might be barred before she knew that the land had been aliened. APPEAL from the Chancery Court of Morgan. 70 403 96 375 |