
    Bolen v. Hoven.
    
      Statutory Action of Ejectment.
    
    1 Executors and administrators; sale of lands for payment of debts. —Tlie probate court has no jurisdiction to sell lands of an estate for the costs of administration, or for a debt contracted by the administrator.
    2. Ejectment; evidence; color of title.■ — -Where, in an action of ejectment, certain void instruments are offered in evidence, as muniments of title, it is proper to exclude them. If competent as color of title, they must be offered as such, or there is no error in their exclusion.
    3. Same; statute of limitations. — Where there is a life estate in one person, and a remainder in another, the remainderman has no right of possession, or right of action, until the expiration of the life estate, and the statute of limitations will not begin to run against the remainderman until some such time or event happens. There can be no ouster of a remainderman during the "continuance of the life estate.
    4. Executors and administrators; sale of lands to pay debts of estate. — A petition in the probate court for an order for the sale of lands of an estate to pay the debts thereof, must be filed by the personal representative of the estate; and such petition filed by any other than such representative, gives the court no jurisdiction, and its action in the premises in such case, is null and void.
    Appeal from the Circuit Court of Clarke.
    Heard, before the Hon. John C. Anderson.
    This was a. statutory action of ejectment, brought by the appellee, Zedora Hoven, against the appellant, John A. Bolen. Both parties claimed title from a common source, that is, one Odosia Stringer. On the trial, the plaintiff proved that she was the only child and heir of Odosia Stringer, who died in 1868, leaving surviving her, her husband, T. E. Stringer, and the plaintiff. That T. E. Stringer died in the year 1902.
    The defendant offered in evidence; first, an application by one S. J. Parker for letters of administratior d& bonis non, on the estate of Odosia Stringer, showing that a former administrator, E. H. DuBose, had died, leaving unadministered assets of the estate; second, an order of the probate court in which the administration was pending, ordering the sale of the lands in controversy for payment of the debts of the estate of Odosia Stringer, which order stated that it was based on the petition therefor, filed by A. P. DuBose, the administrator of the. above mentioned E. H. DuBose. S. J. Parker, the administrator de bonis non, is recited to have appeared and moved that the order of sale be granted. Defendant also offered in evidence the statement filed by Parker on his final settlement, which showed that the only debts paid by bim out of tbe proceeds of such sale, were taxes on the property since bis appointment, and tbe costs of tbe administration. Also, a deed made under sucb order to one John S. Moore, and mesne conveyances from bim to tbe defendant. The court held tbe probate proceedings and deed under them to be void, and excluded them, Tbe defendant offered evidence showing adverse possession by bim and predecessors in title, since tbe above deed to Moore.
    There was verdict and judgment for tbe plaintiff, from which tbe defendant appealed.
    John S. Graham and McLeod & Vaughn, for appellant.
    Lackland & Wilson, contra.
    
   DOWDELL, J.

This is a statutory action in tbe nature of ejectment. Tbe plaintiff and defendant both claimed title to tbe land in question from a common source. The plaintiff, appellee here, rested her claim of title upon tbe fact that she was sole heir-at-law of tbe party, who was the common source. Tbe defendant, appellant here, sought to show title through administration proceedings had in tbe probate court of tbe estate of plaintiff’s ancestor, and mesne conveyances thereunder.

These proceedings bad in tbe probate court, as well as the mesne conveyances, were excluded from evidence on tbe plaintiff’s objections, and these are the rulings now complained of as error.

It is well settled that the probate court has no jurisdiction to sell the lands of an estate for the costs of an administration, or for a debt contracted by the administrator. — Beadle v. Steele, 86 Ala. 413, and authorities there cited.

The records of tbe probate court which were offered in evidence failed to show that said court bad ever' acquired jurisdiction of the sale of tbe lands of the decedent’s estate, and all proceedings, therefore, bad thereunder were void. As no title could pass by sucb void proceedings, the court committed no error in excluding the same from the evidence on the objection of plaintiff.

It does not appear from the record that these proceedings had in the probate couiff, as well as the several conveyances under them, were offered in evidence otherwise than as muniments of title. It is here argued that the evidence was competent and admissible as color of title, but it does not appear that it was offered as such.

The undisputed facts show that the plaintiff’s interest was that of a remainderman, and that she instituted her suit, for the recovery of the possession of the land in question, within a few months- after the death of the life-tenant. Until the termination of the life estate the remainderman had no right of action for the recovery of the possession of the land. The statute of limitations can never run against the remainderman during the existence of the life estate, for the reason that no cause or right of action is in the remainderman, nor can there be •any adverse possession as to him for like reason. There can' be no ouster of a remainderman who has neither the possession, nor right of possession, during life of the life tenant. — Pickett v. Pope, 74 Ala. 122; Edwards v. Bender, 121 Ala. 77; Washington, Admr. v. Norwood, 128 Ala. 388, and authorities there cited.

The case at bar is- distinguishable 'from the case of Woodstock Iron Co. v. Fullenwider, 87 Ala. 584, relied on by appellant. In the case before us, there is nothing, upon which to invoke the doctrine of equitable estoppel— no application of the proceeds of sale of land to the payment of debts, etc., as was the case in Woodstock Iron Co. v. Fullenwider. We are not to be understood, in what- we have said in differentiating the present'case from the Woodstock-Fullemoider case, as re-affirming or re-committing ourselves to the doctrine there laid down.

As the defendant was unable to trace title back to the common source, from which the bill of exceptions states that both plaintiff and defendant claimed right and title, no reversible error was committed in excluding, on plaintiff’s objection, the subsequent mesne conveyances offered by defendant. We find no error in the record and the judgment will be affirmed.

Affirmed.

McClellan, C. J., Haralson and Denson, J.J., concurring.

ON APPLICATION FOR REHEARING.

It is insisted in argument by counsel, on application for rehearing in this case, that the petition filed in the probate court for the sale of the land in question contained all of the necessary averments as to jurisdiction. The petition, in fact, is not set out in the record, but is only referred to in a subsequent order granting a motion made by an administrator de bonis non to sell the land under the petition referred to. But be this as it may, and conceding that the averments as to the jurisdictional facts of indebtedness and insufficiency of personal property to pay debts were sufficient, it affirmatively appears that the petition was not filed by tihe administrator of the estate of Odosia Stringer, deceased, but by one A. P. DuBose, administrator of the estate of E. H. DuBose, deceased, who ivas in his lifetime administrator of the estate of Odosia Stringer, deceased. To give the probate court jurisdiction to sell land of the deceased, the petition must be filed by the administrator of the estate of the deceased. This is the first and essential step in the order of jurisdiction, and without this jurisdiction, no valid order could be made in the premises by the court. It is a self evident proposition, that no valid judgment can be rendered, until after jurisdiction has been acquired.

The order for the sale of the land affirmatively shows that the court was .without- jurisdiction to malee it. — it carries its death warrant on its face. The statute is mandat ory. It says the application for the sale of lands must he filed by the administrator. — § 158, Code of 1896.

The application for rehearing must be denied.  