
    Jones v. Woodstock Iron Co.
    
      Bill in Equity by Purchaser at Sale under. Probate Decree, for Injunction of Actions by Decedent’s Heirs at Law.
    
    1. Petition by administrator for sole of lands; .averment of ownership. In a petition by an administrator lor an order to sell land's for equitable division, an averment that “the lands belonging to the estate of said decedent are the following,” is a sufficient averment of ownership to support the jurisdiction of the court to grant an order of sale.
    2. t'onclusireness of order of sale. — If the administrator’s petition, though demurrable, contains the necessary jurisdictional averments, its .defects are not available on collateral attack of the sale, the order of sale being conclusive.
    3. What lands may be sold. — The statute authorizes the sale of an equitable interest in lands, as where the decedent had paid the purchase-money, or a part of it, but had not received a conveyance; but, if the administrator pays the balance of the unpaid purchase-money, and takes a conveyance to the heirs, he can not afterwards have the lands sold under the statutory jurisdiction of the court.
    '.4,'. .Cuiioliisiveness.of confirmed sale —When a sale of lands has been made under a proper decree, reported to the court and confirmed; the purchase-money reported paid, and a conveyance ordered and made to the purchaser, its validity can not be assailed by the heirs on the ground that the purchase-money was not in fact paid, or that the sale was not made as directed.
    5. Estoppel against adult heirs— If the adult heirs, parties to the proceedings, allow the sale to be confirmed without objection, and the administrator to charge himself, on final settlement, with the purchase-money, decrees being rendered against him in their favor for their respective portions, they are estopped from afterwards assailing the validity of the sale ; but the estoppel does not extend to infants, although represented by a guardian ad litem, if they have done nothing after attaining their majority to ratify the sale.
    6. Amendment of decree nunc pro tunc. — If the order of sale refers to the petition as asking a sale for equitable division among the heirs, and to the depositions in support of it as proving that a sale is necessary for the payment of debts, this is a mere clerical misprision, which is amendable by the record; and the amendment may be made at a 'subsequent term, nunc pro tunc, without notice to the heirs.
    7. Decree for divestiture of title. — Under a bill which seeks to divest the legal title to land out of the defendants and vest it in the complainant, the court may directly so order, adjudge and decree, without requiring the execution of a deed by the defendant, the register, or a special commissioner. (Prewitt. v. Ashford, 90 Ala. 264, overruled, except as to proceedings instituted on its authority.)
    Appeal from tbe City Court of Anniston, in equity.
    Heard before tbe Hon. B. F. Cassady.
    Tbe bill in tbis case was filed on tbe 19tb November, 1889, by tbe Woodstock Iron Company and tbe Anniston City Land Company, two private corporations, against Alice C. Jones, Walter L. Jones and others, as lieirs at law of James M. Jones, deceased, and against A. H, Jones, wbo was not alleged to bold under tbem, or to bave any connection witb tbem; and sought to enjoin two actions of ejectment, one instituted by said heirs, and tbe other by.said A. H. Jones, and to bave tbe legal title to tbe lands sued for divested out of tbe defendants and vested in. complainants. Tbe complainants claimed tbe lands as sub-purchasers under a sale made by tbe administrator of said James M. Jones, under an order and decree of tbe Probate Court, and tbe defendants assailed tbe validity of tbe order and of tbe sale.
    Tbe following are tbe material facts shown by tbe record: James M. Jones died, intestate, on tbe 16th January, 1875, being at tbe time in possession of tbe lands, which be bad bought from one E. C. Brock, wbo bad bought from E. L. Woodward. Jones paid part of tbe purchase-money to Brock, assumed to pay tbe balance due to Woodward, and took an assignment of Woodward’s bond for title; but be died without having paid tbe balance, and without a conveyance of tbe land. Letters of administration on tbe estate of said Jones were granted, on tbe 4th April, 1876, to W. H, Hames, bis son-in-law,. wbo afterwards paid, ont of tbe assets of tbe estate, tbe balance of tbe purchase-money due to Woodward, and procured bis conveyance of tbe lands to tbe children of Jones, wbicb was dated May 17tb, 1877. On tbe 4tb September, 1879, tbe administrator filed bis petition in tbe Probate Court, alleging “tbat tbe lands belonging to tbe estate of tbe decedent are tbe following,” describing tbem, and tbat tbey “can not be equitably divided among said beirs without a sale,” and therefore prayed an order of sale. On tbe filing of this aplication, tbe court appointed a day to bear it, ordered notice to tbe adult beirs, and appointed a guardian ad litem to represent tbe minors. Notice was served on tbe adult beirs, and tbe guardian ad litem filed a formal answer for tbe minors. The administrator filed interrogatories to W. H. Forney and E. L. Woodward, each of whom testified tbat tbe lands could not be fairly divided without a sale, and tbat a sale would be beneficial to tbe beirs. Tbe interrogatories to tbe witnesses and their depositions were filed on tbe 13th November, 1879, and on tbe same day tbe court granted an order of sale, reciting therein tbat tbe administrator bad filed bis petition asking a sale “on tbe ground that said real estate can not be fairly, equitably and beneficially divided without a sale thereof tbat notice bad been issued to tbe beirs, and a guardian ad litem bad been appointed for tbe minors; “and it appearing to tbe satisfaction of tbe court, by tbe oaths of E. L. Woodward and W. H. Forney, disinterested witnesses, whose testimony has been taken by deposition as in chancery proceedings, and wbicb has been filed of record in this court, tbat said lands,” describing tbem, “should be sold for tbe purpose of paying tbe debts of said estate; it is therefore ordered,” &c., “tbat said application be granted, and said administrator is ordered to sell said lands at public outcry, on tbe following terms: one half cash, and tbe remaing half on a credit of twelve months, with note and two good and solvent sureties.
    Tbe administrator reported, June 21st, 1881, tbat be bad offered tbe land for sale under tbe order, on tbe day named in tbe published notice, but bad no bidders; “tbat said land is yet undisposed of, and is still tbe property of said estate ; tbat there are still some small balances .due from said estate, and a final settlement of said estate can not be bad without a sale of said property. Again, four of tbe beirs of said estate are over the age of twenty-one years, and are anxious for their share of tbe estate, and, as has been shown by proof under former petition, said lands can not be equally divided among said beirs without a sale thereof. Therefore your petitioner asks that an order be again granted by your hon.' court authorizing him to sell the land mentioned in- his; former petition, at such time and place, and for cash, as' may seem right and beneficial for the interest of said heirs.’’ On- the same day the court made an order of sale, which recited the allegations of this petition, and that the court ■ “is satisfied that the allegations thereof are true, and au--thorized the administrator to re-adyertise and sell the lands,’ for. cash, for the purpose of paying off some • indebtedness against said estate, and for division among the heirs and distributees thereof.” On the 30th August, 1881, the ad-' ministrator made his report of the sale, and asked its con-,’ firmation; giving the name of Joseph A. Jones, one of the heirs, as the purchaser, at the price of $1,749.60, and stating that he was ready to comply with the -terms of the Sale: ! Oh the filing of this petition, the court made an order appoint- - ing the 9th September for the hearing of - it, “and giving all parties interested in said estate until that day to come into court and 'object or except to said report and sale.” • The' record does not show or recite notice ■ to' the parties of this'order, but the sale was confirmed on the 9th September, 1881, and the administrator was ordered to execute a' deed to the purchaser ; the order reciting 'the appearance of the . administrator only, and that the court considered “all the evidence connected with said sale.” ■
    ’The facts above stated were shown bya transcript of the ' record of the proceedings had in the Probate Court, which ' was made an exhibit-to the bill; and the transcript also •' showed that, on the 29th October, 1889, after the commencement of the two actions at law, the administrator filed his petition alleging the mistake in the last order' of sale, as to the 'testimony of Eorney, and Woodward, and asking an ' amendment of the decree nunc pro tunc by a correction of the mistake; and. the court made the amendment oh the same day, reciting ¡the facts. ‘ -
    ■ The bill alleged that the “proceeds of the sale of said - lands were regularly and properly distributed bytheAd- . ministrator among the heirs of said estate, and were received and appropriated by said heirsbut this- allegation was denied by the heirs, and they alleged- that the administrator had never made a final settlement. It was shown by a trans-" cript from the records of the Probate Court that the admin- . istrator had filed his accounts and vouchers for a final settle- ' ment on the 20th June, 1881, but the settlement was'1 continued at his instance, and changed to an annual settlement; that in his account as filed, which was sworn to on-the 21st May, 1881, was an entry of debit in these words : “Debits brought forward, $1,767.60; to which add proceeds of sale of Anniston land sold July 21st, 1881, payment made Sept 9th, 1881, from private sale of said land sold at public sale July 21st, 1881, $2,000; making amount received to-date, $3,767.60;” leaving balance for distribution, $1,800,- or $300 to each heir. The- court passed the account as stated, and rendered a decree against the administrator, in favor of each of the heirs and distributees, for $300. The probate judge certified that this was the last settlement shown by the records of his court, and the administrator himself testified that he had never made any subsequent settlement; but he claimed that he had settled with J. A. Jones for the interests which he represented, had -himself retained his wife’s distributive share, and also the shares of the two minors, who were then living with him, and who had no guardian; and that they were indebted to him, .on that account, more than $300 each. ...
    The defendants also denied, in their answer, that there' was ever any public sale of the lands by the administrator,' and alleged that they were sold by private arrangement between the administrator, Joseph A. Jones,-and an agent of the Woodstock Iron Company. In reference to this matter the administrator testified, and other testimony was to the same effect, that it was agreed between him- and Joseph A. Jones, who acted for the other adult heirs, prior to the day appointed for the sale under the first order, that the land should be bought in by the estate, unless it brought $2,000 ; that the highest bid at the sale was about $1,740; that thereupon one Edmonson, acting for said Joseph A. Jones, bid $1,749.60, and it was knocked down to said Jones as the purchaser, at that price ; that said Jones, a few days or weeks afterwards, came to the administrator, and repre- ' sented to him that he had found a purchaser for the land at the price of $2,000; that he came to the ■ administrators office on the 9th September, 1881, accompanied by Jno. M. Caldwell, who, as the defendants insisted, was acting as the agent of the Woodstock Iron Company; that Caldwell then paid the administrator- $2,000, and the latter executed a deed to Joseph A. Jones as the purchaser at the sale, who at once executed a deed to said Caldwell. The administrator’s deed to Jones recited that the sale-was made on the 26th July, 18,81, under the order of sale granted on the 21st June, 1881; that said J. A. Jones was the purchaser at the sale, at a price aggregating $1,759.60; that the sale had been reported to tbe court, and confirmed; tbat Jones bad paid tbe purcbase-money, tbe payment bad been reported to tbe court, and tbe administrate!’ bad been ordered to execute a conveyance to bim as tbe purchaser; and tbe deed conveyed to said Jones all tbe right, title and interest of tbe estate in the lands. Tbe deed of said Joseph A. Jones to Caldwell, also dated September 9th, 1881, recited tbe payment of $2,000 as its consideration, and contained no warranties. Caldwell’s deed to tbe Woodstock Iron Company was dated October 3d, 1881. Tbe administrator testified tbat be received tbe $2,000 from Caldwell, and charged himself with tbe amount in bis account, as above stated, in order tbat tbe estate might get tbe benefit of tbe advanced price, and considered tbat be bad made tbe sale under tbe order of tbe court.
    Tbe heirs filed a joint demurrer to tbe bill for want of equity, and a joint answer setting up tbe tbe facts above stated in avoidance of tbe sale; and they also filed a cross-bill, offering to refund whatever amount of tbe purcbase-money they bad received, or were chargeable with, after deducting tbe rents and profits which the complainants bad received, allowing them taxes paid and tbe value of improvements erected on tbe lands, and tbat tbe decree of sale be vacated as a cloud on their title. A. H. Jones joined in tbe demurrer and answer of tbe heirs, but did not show bow be was connected with their title.
    Tbe court overruled tbe demurrers to tbe bill, and dismissed tbe cross-bill; and on final bearing, on pleadings and proof, rendered a decree for tbe complainants, declaring tbe legal title to tbe lands divested out of tbe defendants and vested in tbe complainants, and perpetually enjoining tbe actions at law. Tbe defendants jointly appeal, and assign each part of this decree as error; and there are separate assignments of error by Alice Jones, Walter Jones, and Joseph A. Jones.
    Watts & SoN, PabsoNS & Dabby, GobdoN MacdoNALD, and Kelly & Smith, for appellants.
    (1.) Tbe sale was void, whether made under tbe first or tbe second petition filed by tbe administrator. Tbe first petition did not contain the necessary jurisdictional averments, because it did not allege or show 'that tbe decedent was seized and possessed of the lands at tbe time of bis death, nor tbat be then bad an estate in them which was subject to sale. — PeMit v. Pettit, 32 Ala. 288; McCain v. McCain, 12 Ala. 510; Mounger v. Burks, 17 Ala .48 ; Bishop v. Blair, 36 Ala. 80. Tbat decree was void for the further reason, that it did not conform to the petition, but ordered a sale for the payment of debts. Tyson v. Broion, 64 Ala. 244. If the sale was made under the second order, it was equally void, because the beirs had no notice of that petition, and because no proof was taken in support of it. The amendment nunc pro tunc was made without notice to the heirs, and it can not affect their rights. 72 Ala. 391; 54 Ala. 445. (2.) But the proof shows that the court had no power to sell the land under any petition, because the title had been conveyed to the heirs at the instance of the administrator. — McCain v. McCain, 12 Ala. 510; Mounger v. Burks, 17 Ala. 48; McKay v. Broad, 70 Ala. 380. The proof shows, also, that the sale was not made under either order, nor even at public outcry, but was a private arrangement effected between the administrator, Joseph A. Jones and Caldwell; and it was void for this reason. — Lee v. Lee, 55 Ala. 590; James v. James, 55 Ala. 525; 111 TJ. S. 640. (3.) A purchaser at a void judicial sale does not acquire any title, but only a right, at most, to compel his adversary to elect whether he will ratify or repudiate the sale on equitable terms. — -Freeman on Judicial Sales, §§ 53, 55 ; Cox v. Holcombe, 87 Ala. 592; Woodstock Iron Co. v. Fullemoider, 87 Ala. 584; Scott v. Dunn, 30 Amer. Dec. 174, note; Perry v. Adams, 2 Amer. St. 51, note; Mc-Qee v. Wallis, 34 Amer. Bep. 584; 46 Geo. 101. (4.)' No estoppel is shown against any of the heirs, except, possibly, Joseph A. Jones, who actively participated in the sale, and received his portion of the purchase-money. (5.) No ground of relief is alleged or proved against A. H. Jones, and the bill ought to have been dismissed as to him. (6.) The decree is erroneous in attempting to divest the title. — Preioitt v, Ashford, 90 Ala. 300.
    John B. Knox, and Caldwell & Johnston, contra.
    
    (1.) The petition may have been demurrable, but it is sufficient on collateral attack. — 3 Brick. Digest, 467, §§ 182-3; Code, §§ 2105-14, and citations. (2.) Jurisdiction having attached, mere errors or irregularities will not avoid the sale on collateral attack. — 3 Brick. Digest, 466, §§ 168-9. (3.) The mistake in the decree of sale, about selling for the payment of debts, is self-correcting, and notice of the amendment nunc pro tunc was not necessary. — -Nabors v. Meredith, 67 Ala. 333; 3 Brick. Digest, 577. (4.) It can not be denied that James M. Jones, at the time of his death, had an equitable interest in the land, which was subject to sale under a decree of the Probate Court. — Bicev. Drennen, 75 Ala. 338. The legal title afterwards acquired by tbe heirs did' not disturb this interest in the estate; nor ■ deprive the- court of power to sell it. The sale was made for the benefit of the heirs, and they were parties'to the proceeding. ' The decree recités that the land belonged to the estate, and the recital is conclusive on the heirs. The decree can only be impeached for fraud. Mervine v.- Parker, 18 Ala. 241; Kdlam v. Richards, 56 Ala. 238; Whitlow, v. Echols, 78 Ala. -206; Landford v.-Dunklin, 71 Ala. 594; Cornett v. Williams, 20’Wall. 226. (5.) If-thp minor heirs are entitled to any relief, they can not have it under the pleadings as now presented.
   • COLEMAN, J.

The' bill w'as filed to enjoin suits in ejectment, commenced by the heirs of James M. Jones,' to recover- certain lands which were sold under an order of the Probate Court; and also to have the legal title to the lands-sued for divested out of said heirs, and invested in complainants. . The facts sufficiently appear in the statement of the facts of the case, in the further progress of this opinion.- ■ The petition to the Probate Court of Calhoun county, in its allegations for the sale of the lands for distribution, sufficiently complied with the statute to give jurisdiction to the court.- — Code of 1886,' § 2106; Code of-1876, §§ 2449, 2450. ■ Citations to the parties. in- interest regularly issued, and a guardian.ad litem, who accepted the appointment to represent the minor heirs, appeared and represented them in the proceedings in the Probate Court to have the lands' sold for distribution. - . •

. Even though a petition bé subject to demurrer, or a judgment on the demurrer be reversible for error on appeal; yet, if the - petition sufficiently alleges all the necessary jurisdictional facts, and final judgment is rendered thereon, from which no appeal is taken, such irregularities or reversible errors can not avail when the judgment is collaterally assailed.— Whitlow v. Echols, 78 Ala. 208; Pollard v. Hamrick, 74 Ala. 337; 3 Brick. Digest, 467, §§ 182, 183, 185.

The Probate Court has jurisdiction to sell for division lands in which the decedent held only an equitable interest. Pettit v. Pettit, 32 Ala. 288; Vaughan v. Holmes, 22 Ala. 595 ; Rice v. Drennen, 75 Ala. 338; Jennings v. Jenkins, 10 Ala. 285; Duval v. McClosky, 1 Ala. 708. The statute which authorizes the Probate Court to sell land for division is as follows :. “Lands of an estate may be sold by order of the Probate Court having jurisdiction of the estate, when the same can not be equitably divided among the heirs or de-visees.” — Code, § -2105. A difficulty arises as to what constitutes “lauds of an estate,” within the meaning of the statute. The preceding section, -in -regard to the sale of lands.for the' payment of. debts, uses-the same broad term, “land.” As we have. seen, the statute includes a mere equity in lands; and in the case of Vaughan v. Holmes, 22 Ala., supra, it was held that a purchaser of lands, who died before paying .the entire purchase-money, had such inchoate interest or equity as was subject-to sale under, the statute by decree of the Probate Court.,.

"When a sale of lands for distribution has been made in pursuance of an . order of the court having jurisdiction of the question, and on proof taken as required by the statutes, and'the sale and payment of the purchase-money regularly reported to the court, and confirmed by a decree of the court, and a conveyance of the title is executed to the purchaser, in pursuance to an order of the court to that effect,no fraud being alleged, the validity of the sale and the title of the purchaser can not- be collaterally assailed by showing that the purchase-money was not paid as reported, or that the sal.e in fact was not made as directed by the court. These questions are judicially ascertained .and adjudicated by the judgment of confirmation. It makes no difference that the Probate Court is of limited jurisdiction. After it has properly acquired jurisdiction, its judgments have the same extent, and are as conclusive quoad rem and the parties properly before it, as judgments of courts of. general jurisdiction. . A purchaser at such sale is only bound to see that the court had jurisdiction.— Wyman v. Campbell, 6 Ala. 219; Whitlow v. Echols, 78 Ala. 210 ; Farley v. Dunklin, 76 Ala. 530; Kellam v. Richards, 56 Ala. 240; Stevenson v. Murray, 87 Ala. 442; Cantalou v. Whitley, 85 Ala. 248; Goodwin v. Sims, 86 Ala. 102; Morgan v. Farned, 83 Ala. 367.

These general propositions of law are subject to the qualification, that the statute which confers the power on the Probate Court to sell lands for distribution extends only to the title or estate as it descended, and not to an after-acquired, title or interest different and distinct from that which the intestate had at the time of his death. In support of this qualification of the general principle, the following authorities are cited : Johnson v. Collins, 12 Ala. 336 ; Pettit v. Pettit, 32 Ala. 288, 305; Burns v. Hamilton, 33 Ala. 213; Cothran v. McCoy, Ib. 65; Bishop v. Blair, 36 Ala. 380; McCain v. McCain, 12 Ala. 510 ; McKay v. Broad, 70 Ala. 380; Whorton v. Marange, 62 Ala. 207; Mounger v. Burks, 17 Ala. 50 ; Rice v. Drennen, 75 Ala. 338.

The citations from 36 Ala., 33 Ala., 32 Ala., and Johnson v. Collins, 12 Ala. 336, are not directly in point, tbongb often quoted to the proposition. In the case of Pettit v. Pettit, 32 Ala.; supra, the conclusion of the court rested upon the fact that the contract of the intestate for the purchase of land was void as contravening public policy, and in violation of a statute of the United States,- and this defect was apparent upon the petition to the Probate Court for the sale of the lands.'

In the case of Johnson v. Collins, 12 Ala., the conclusion of the cciurt was, that the intestate had no inheritable or devisable interest in the lands, either legal or equitable, and consequently there was nothing upon which the order of the court could operate; that under the pre-emption law, the heir, by virtue of the statute, was entitled to perfect the inchoate pre-emption right of the settler, and not the administrator of the intestate. The other case cited from 33 Ala. merely re-affirmed the same ruling.

The proposition, however, is broadly stated and declared in McCain v. McCain, 12 Ala. 510. In this case, the intestate had purchased the land, and died without mating payment of the purchase-money, and before receiving the title. His administrator paid the unpaid balance of the purchase-money, and titles were made to the heirs of the decedent. The court held the power to sell lands for distribution “is only given when the land remains in the same condition as to the title as it was at the decease of the intestate, but' has no power when the title of the ancestor has been divested and made to the heirs.”

The facts in the case of Bishop v. Blair, supra, show that Mrs. Bishop, with funds of her- husband’s estate, entered certain lands. Under a petition by her, as executrix, to the Probate Court, these lands were represented as belonging to the estate of her deceased husband, and as such were decreed to be sold for division. It was held that the court had no jurisdiction to sell the lands for distribution, and the order • of the court for this purpose was null and void. The rule has been recognized without a single departure to the present time, since it was first declared in McCain v. McCain, 12 Ala., supra. Whatever hardships may arise, it is now a rule of property too firmly fixed to be departed from, without legislation.

So far as the adult heirs are concerned, we are firmly convinced that they are estopped from asserting any claim hostile to that of the purchasers. These adult heirs, with a full knowledge of all the facts, permitted the sale of the lands to be reported to the court, and the sale confirmed by the decree of the court. They were parties to the settlement by the administrator, in which he charged himself with the proceeds of the sale of the land, and decrees were rendered against him for their proportionate share of the-purchase-money. The ■ principle is not unlike that which was applied in the case of Bell v. Craig, 52 Ala. 216, in which it was held, that although the sale of the lands was void, the settlement by the administrator and decree against'him estopped the heirs from questioning the' validity of the order under which the sale was made. See, also, Whitehead v. Jones, 56 Ala. 156; Bland v. Bowie, 53 Ala. 161; Pickens v. Yarborough, 30 Ala. 410 ; Robertson v. Bradford, 73 Ala. 118 ; Bishop v. Blair, 36 Ala. 83; Rice v. Drennen, 75 Ala. 338; Nunn v. Norris, 58 Ala. 202.

The decree of the court ordering the sale of the land was rendered in the year 1879 ; the sale made in June, 1881, reported and regularly confirmed in September, Í881; and the purchasers have been in possession ever since, have erected valuable improvements 'thereon, and their title never questioned until January, 1888, when suit in ejectment was instituted by the two minor heirs to recover the land'. It can not be tolerated in a court of equity that the adult heirs can, at this late day, repudiate the sale, and recover back the land. Their claim constitutes a cloud upon the title of the complainants, which entitles them to relief in a court of equity. Although the minor heirs, Alice and "Walter- Jones, waited several years after attaining their majority before commencing legal proceedings in ejectment to recover their interest, it does not appear from the record, or in proof, that personal knowledge of the proceedings in the Probate Court for the sale of the land, and of the final settlement by the administrator, and the decree' in their favor against him for the purchase-money, was brought home to them, or that they have ratified the settlement; or done any act which would estop them from asserting their claim. Complainants seem to have acted in good faith in their purchase, and in making improvements thereon, and the equities of the parties as to rents, or in case of partition, if such proceedings should be instituted, can be fully adjusted upon proper pleadings in a court of equity.

The answer, cross-bill and demurrers of the minor heirs • are filed jointly with the adult heirs, who are not entitled to relief. The pleadings should be amended, if desired,- so as to separate the rights and interest of the minor heirs from the adult heirs. . . .

If tbe decree of tbe court upon tbe petition of tbe administrator for tbe sale of tbe lands was not otherwise invalid, tbe amendment nunc pro iunc was properly made. Tbe petition to tbe Probate Court sought to have tbe lands sold for an equitable division. Tbe citation to the heirs so stated. Proof was taken by deposition to show that tbe lands could not be divided without a sale, and which depositions were ordered to be filed as a part of tbe record of tbe proceedings. Tbe decree itself provides that tbe petition be granted. It is perfectly evident that tbe recital in tbe judgment, that tbe lands be sold for tbe purpose of paying tbe debts, was a mere clerical mistake, capable of correction nunc pro tunc, if indeed, when considered in connection with all tbe quasi-record memoranda and tbe record proper, it did not correct itself. Tbe proceedings being in rent, as between tbe administrator and heirs, notice to tbe heirs of tbe motion to amend nunc pro tunc was not necessary. — Farley v. Dunklin, 76 Ala. 532; Goodwin v. Sims, 86 Ala. 102 ; Nabors v. Meredith, 67 Ala. 333; Whorley v. M. & C. R. R. Co., 72 Ala. 22.

Tbe record nowhere shows bow tbe rights of A. H. Jones are involved in this case, and it does nor appear upon what grounds tbe injunction was issued and made perpetual as against him.

It is insisted that tbe decree of tbe equity court is erroneous, in that it undertook to “invest tbe legal title” in tbe complainants. Tbe case of Prewitt v. Ashford, 90 Ala. 300, supports tbe contention. We would correct tbe decree in this respect, if we deemed it necessary. A deed made in pursuance of a decree of a court of equity, executed by any other person than tbe legal owner, proprio vigore would, not convey tbe legal title. Such an instrument derives its entire strength from tbe decree. It is tbe decree at last, and not tbe instrument itself, which makes it effectual to convey or invest tbe legal title. Courts of equity in this State have long pursued tbe practice of investing tbe legal title by its decrees. This practice was not only sanctioned but expressly authorized by tbe decision of tbe Supreme Court of this State. As far back as 19 Ala. 481, 490, Brewer v. Brewer, Dabg-AN, C. J. proceeding to render “such decree as the court beloiu should have rendered, ordered, adjudged and decreed, that Tbos. J. Brewer be invested with tbe legal title,” &c. This early decision has become a rule of property, and to bold otherwise now would upset a great many legal titles. We adhere to the old rule, and so far as Prewitt v. Ashford, supra, conflicts witb it, the latter is hereby qualified. Either course would be efficient to invest a legal title. That no injustice may be done to litigants who, under the influence of the decision made in the case of Prewitt v. Ashford, supra, have instituted proceedings to procure the legal title, we declare and hold that as to such cases the case of Prewitt v. Ash-ford operates as a rule of property.— Farrior v. New England Mortg. Sec. Co., 92 Ala. 176.

The decree of the City Court is affirmed, so far as it granted relief to complainants against the adult heirs of James M. Jones; and reversed so far as relief was granted against Walter Jones and Alice Jones, who were minor heirs at the time of the sale and settlement, and against A. TT. Jones.

The judgment of this court reversing the decree rendered against the minor heirs and A. H. Jones is not to be construed as dissolving the temporary injunction enjoining the prosecution of the ejectment suits, but as to such matter the question is left open for the consideration of the lower court, if the pleadings should be amended, and other proof offered, in the further progress of the cause.

One half of the costs of the appeal must be paid by the adult heirs of James M. Jones, and the other half by the appellees.

Affirmed in part, and reversed in part.  