Goodman v. Winter

BBICKELL, 0. J.

The devise and bequest in the will of George B. Clayton, to his children, of all his estate, real and personal, remaining after the payment of his debts, to be divided among them equally, each child accounting for advancements, created a tenancy in common; the daughters taking estates for life, with remainders to their children, which were subject to open and let in after-born children. This tenancy in common continued, until there was a partition, or division, which the will contemplated. If, before such division, any of the daughters had died, her children, as remainder-men, would have become tenants in common with the surviving children of the.testator.— Chighizola v. LeBaron, 21 Ala. 406; 1 Jarman on Wills, 117. The fee simple passes by the devise — the entirety to the sons, an estate for life to the daughters, with remainder to their children. Such would have been the construction and operation of the will at common law. In this State, joint tenancjr has been abolished, by statute enacted under the territorial government; and when such an estate may have been created, by proper words according to the common law, it is converted into a tenancy in common. This statute would have controlled the operation and construction of the will, if it had created a joint tenancy, so far as it affects the lands here situate. A division *426 of the estate the will contemplates, without a resort to judicial proceedings, by the act of the children ; so that the share or portion each one is entitled to hold in severalty, can be ascertained and identified. The evidence of such division, and of the title of the children, which is to be preserved, the will prescribes. No deed of conveyance of any kind is required, to pass title to the children severally. By the operation of the devise, and by force of its terms, when a division is made, the share of each child is identified, and each is clothed with the legal title thereto in severalty.

2. At common law, the ecclesiastical courts had exclusive jurisdiction of the probate of wills of personal property, and probate w'as necessary to authorize a legatee to maintain a suit, at law or in equity, for the recovery of a gift to him. No other evidence of the existence and validity of the will could be received. — Shepherd v. Nabors, 6 Ala. 637. The sentence of probate, had in the proper tribunal of the domicile of the testator, was in rem, not in personam, and could not be collaterally assailed. In other countries, it operated as evidence, and was the foundation of an ancillary probate, when in such countries probate was indispensable to enable the legatee there to maintain suits. — Moore v. Lewis, 21 Ala. 580; Wood v. Matthews, 53 Ala. 1. Devises of real estate, independent of statutory enactment, did not need a formal probate, to entitle them to be received as evidence. Of them, the ecclesiastical courts had no jurisdiction, and their existence and validity could only be contested in ordinary actions at common law. The judgment in such actions was binding only on parties and privies. The jurisdiction of the ecclesiastical courts, in this country, has been translated to courts, though differing in organization, of the same general jurisdiction, and the sentences of these courts have the same legal operation and effect. In many of the States, the jurisdiction has been enlarged, and embraces not only wills of personal property, but devises of real estate, not distinguishing between them, and providing modes of contesting .their validity. When jurisdiction is thus conferred, it is plenary and exclusive; and the sentence of probate, being in rem, is conclusive, in all other than a direct proceeding for its vacation or reversal; and is as indispensable as matter of evidence, to the force and effect of a devise, as to a bequest of personal property. — 2 Green. Ev. 672 ; 1 Jarman on Wills, 215 ; Shumway v. Holbrook, 1 Pick. 114; Kerr v. Moore, 9 Wheat. 565; McCormick v. Sullivant, 10 Wheat. 192; Johnson v. Glasscock, 2 Ala. 218; Tompkins v. Tompkins, 1 Story, 547; Poplin v. Hawks, 8 N. H. 124; Dublin v. Chadbourn, 16 Mass. 433.

3. In the absence of statutory provisions, the sentence of pro *427 bate, in tbe proper tribunal of tbe domicile of tbe testator, is conclusive everywhere, of the capacity of the testator, and of the due execution and validity of a will of personal property. No other tribunal, foreign or domestic, will indulge an inquiry behind or beyond it. When the probate is to operate in another jurisdiction, ancillary probate may be necessary ; but the only inquiry then made is as to the validity and due authentication of the original probate. Ascertaining that to have been granted by a court of competent jurisdiction, and to be properly authenticated, ancillary probate is a matter of right. — Brock v. Frank, 51 Ala. 85; Williams v. Sanders, 5 Cold. 60; Whar. Con. Laws, § 645; Redf. Wills, 394-98.

4. The statutes of force at the death of the testator, and continuing of force until the Code of 1852 became operative (on the 17th January, 1853), conferred on the Orphans’ Courts exclusive jurisdiction of the probate of wills, not only of personal, but of real estate, making no distinction between them. The validity of the will was the subject of contest in the Orphans’ Court, at the time of probate; or, within five years after the sentence of probate, by bill in chancery. In no other mode could its validity be questioned; and after five years, the original probate was binding and conclusive on all parties concerned, except infants, femmes covert,, non compotes mentis, or persons absent from the State, who were allowed a like period of five years, after the removal of disabilities, to contest the validity of the will in equity. — Clay’s Dig. 597-98. The operation of these statutes was, that probate of a will was as necessary as evidence to give effect to a devise, as it was at common law to give effect to a legacy, or a bequest of chattels, and the probate was as conclusive of the validity of the will, so far as it devised real estate, as it was so far as it disposed of personal property.

The statutes proceeded further, and authorized the probate of authenticated copies of wills, proved according to the laws of any of the United States, or of any country out of the limits of the United States, touching or concerning estates within this State; but its validity was subject to be contested and controverted in the same manner as the original might have been. — Clay’s Dig. 598, § 12. In Varner v. Bevil, 17 Ala. 286, it was held, that probate of a foreign will, at the domicile of the testator, was not essential to authorize probate in this State, the testator having here real and personal estate on which it operated ; the statute not diminishing the jurisdiction of our courts, but enlarging it, so that, notwithstanding probate had been granted at the domicile of the testator, the validity of the will could be controverted, when probate was sought in our courts. The statute, in this re *428 spect, manifestly modified the general principle of law, applicable to the probate of wills of personal property, that the sentence of a tribunal of competent jurisdiction is binding and conclusive everywhere. The probate here was not merely ancillary, but original, having the force and effect, on personal and real property here situate, of a will made by a resident of this State.

5. The law of the domicile of the owner, whether he dies testate or intestate, controls the disposition or succession to his personal property. The descent, title to, and disposition of real estate, is subject exclusively to the laws of the country where it is situate. Whatever are the modes of alienation, or of devise, or the evidence of alienation or of devise, these laws may prescribe, as essential to 'pass title, must be observed, without regard to the laws of the domicile of the owner, or of the place of making the alienation or devise. Varner v. Bevil, 17 Ala. 286; Brock v. Frank, 51 Ala. 85; Kerr v. Moore, 9 Wheat. 565. Hence, where a statute of the State where lands are situate requires that a will devising them, made in another State, shall be authenticated in a particular manner and recorded, or that probate shall be granted, an observance of these requisitions must be had, or the devise is inoperative for the want of the only evidence of its existence which can be received. — Wheat. Con. Laws, § 561; Kerr v. Moore, supra; McCormick v. Sullivant, 10 Wheat. 192; Dublin v. Chadbourn, 16 Mass. 433.

So far as the will of the testator “touched or concerned estate in this State,” probate here was essential, as evidence of the title of the devisees. The mere registration in the County, or Orphans’ Court, of an authenticated copy of the will, and its probate at the domicile of the testator, was not authorized. It could not operate as evidence of the title of the devisees, nor could it operate as notice of the existence of the will; nor had the probate judge any authority to certify such registration, to be used as an instrument of evidence in other tribunals. — Doe v. Pickett, 51 Ala. 584. In the admission of such copy, the Circuit Court erred. But the error was rendered harmless, by the subsequent introduction of the probate of the will in November, 1846.

6. The validity of the latter probate is assailed, because it is not shown by the record, that the will “touched or concerned estates” within this State. The Court of Probate, nor the former Orphans’ Court, as to the granting of administration, or of letters tfestimentary, the latter including the probate of wills, is esteemed as a court of limited or statutory, but as a court of general jurisdiction. The probate is a sentence in rem, not in personam ; and it is final and conclu *429 sive upon all parties, unless it is directly impeached in the mode prescribed by the statute, or by a proper proceeding for its revocation in tbe court granting it. The objection now made is, not that the fact that the will touched or concerned estates here did not exist, but that the sentence is irregular in not reciting that fact. It would be a ruinous precedent, now that all disputation of the probate is cut off by the statute, to entertain such an objection in a collateral proceeding. Herbert v. Hanrick, 16 Ala. 581. In Doe v. Pickett, 51 Ala. 585, the sufficiency of this probate was directly involved, and it was pronounced valid. We adhere to that decision.

7. The lessors of the plaintiff deducing title in entirety to the premises, it was necessary for them to show that there had been a partition, or division, on which the premises had been allotted or assigned in severalty to their mother. That there was a partition in 1842, before probate of the will in this State, is not a disputed fact. 'The interest of a devisee vests immediately on the death of the testator. No estate can or ought to intervene, between that of the testator and the devisee. Some period of time must elapse between the death of the testator and the probate, when probate is essential as evidence of the title of the devisee — of the due execution and validity of the will. Then, the probate has relation to the death of the testator, and is evidence of the title of the devisee vesting at that time. — 3 Wash. Beal Prop. 450. Where registration or probate of a foreign will is necessary according to the local laws, as evidence of the title of the devisee, the registration or probate has relation to the death of the testator, and the title is regarded as vesting from that period, and not from the registration or probate. — Poole v. Fleeger, 11 Pet. 211; Spring v. Parkman, 12 Maine, 127; Hall v. Ashby, 9 Ohio, 96. The probate operating only as evidence, not being the inception of the title of the devisees, without it they could make the partition or division the will contemplates and authorizes ; and contemplates and authorizes simply for the purpose of identifying the particular property each child should hold in severalty. The title is derived from the will, not from the partition. When there was a subsequent probate of the will, the probate had relation to the testator’s death, and furnished the necessary legal evidence of the title of the devisee. It did not operate to destroy the division which had been made, but simply furnished complete evidence of the several titles of the devisees.

8. It is not a matter of importance, that there is a recital in one part of the partition that it is among the heirs of the testator. In fact, there was no estate descending to the heirs to be divided, and the persons among and between *430 whom the partition was made were the devisees of the testator, deriving title wholly from the will. The recital is merely inadvertent, — an inaccurate expression of the relation of the parties, not uncommon with persons unskilfull in the use of language, — and cannot impair the rights of parties, or change the real character of the division. Whether the transcript of the partition, as recorded in the Court of Probate, was admissible in evidence, is not a question now to be considered, the parties having agreed such transcript should be received, if the original partition was admissible; and of its admissibility there can be no doubt.

9. As we have said, the will contemplates and authorizes a voluntary partition or division between the devisees; and when it is effected, title is not derived from it, but from the will. The partition or division simply designates the portion or share of the estate, real and personal, each devisee or legatee is entitled to hold i»severalty under the will. The possession, with claim of exclusive title to the premises in controversy — exclusive, so far as the other devisees are concerned — by Mrs. Holcombe and those claiming under her, for more than twenty years, was sufficient evidence of a partition, or division, and of her title in severalty; title, not as heir at law, for none had descended to her, but title as devisee. The presumption that there had been a division or partition, and the premises had been assigned to her, would arise from the length of possession. — McArthur v. Carrie, 32 Ala. 75; Harrison v. Heflin, 54 Ala. 552. There was no fact shown, indicating any purpose on her part to take as heir at law ; nor in that capacity could she take. Nor yet was there an indication of any purpose to claim in opposition to, or to affect the estate of the remainder-men. Whatever partition or division she assented to, accepted, and acted on, operated as a designation of the premises to which the remainder-men would succeed at her death ; and by no act of hers, or of her co-tenants, could the remainder be destroyed, discontinued, or prevented from taking effect. The several charges requested, in reference to a division outside of, or repugnant to the will, and among the heirs at law, were properly refused. There was a want of evidence to support them, and no division among the heirs, if such had been made, could affect the rights of the devisees, whether tenants in fee simple, or for life, or in remainder.

10. The validity of the decree of the Court of Chancery, barring and enjoining the lessors of the plaintiff from asserting title to the premises in controversy, which was unreversed when the action was commenced, is the question of chief importance. That a judgment or decree of any court, whether *431 of superior or inferior jurisdiction, is void, if it has not jurisdiction of the subject-matter, or, if it operates in personam, if it has not jurisdiction of the parties, is a proposition every where asserted, and cannot be doubted. Without jurisdiction of the subject-matter, or of the parties, the acts of the court are nullities — they are not merely voidable, but absolutely void. They form no bar, create no estoppel, afford no justification to parties or privies. Whether assailed directly or collaterally, the question ol jurisdiction is always open. Any court before which the judgment or decree is produced, whether as matter of evidence, as the foundation of a right, or as a bar, can and must inquire whether it is a judgment or decree — whether it was pronounced by a court of competent jurisdiction. — Elliott v. Piersol, 1 Pet. 340.

The Court of Chancery is a superior, not an inferior court, as these terms are employed at common law. Its jurisdiction is founded upon, and co-extensive with that of courts of chancery in England, so far as is consistent with our institutions, and so far as it is distinguished from the jurisdiction of the courts of common law. The jurisdiction is enlarged or narrowed by legislative enactments; but, whether it is the original, inherent jurisdiction, derived from that of the court in England, or from statute, it is exercised and administered in the modes which were pursued in England, modified, it may be, in some instances, by legislative enactments.— Waldron v. Simmons, 28 Ala. Rep. 629. The general principle, as to courts of superior or general jurisdiction, is, that the jurisdiction shall be intended, unless it is repelled by the record. As every judgment or decree must stand or fall upon the power and authority of the tribunal pronouncing it, the first inquiry, when its validity is drawn in question, is, whether jurisdiction appears, or can be presumed. In United States v. Arredondo, 6 Pet. 709, it is said: “The power to hear and determine a cause is jurisdiction : it is coram judice, whenever a case is presented which brings this power into action: if the petitioner states such a case in his petition, that, on demurrer, the court would render judgment in his favor, it is an undoubted case of jurisdiction.” The court would be then bound to hear and determine, and its judgment, however erroneous, would bind parties and privies— would be conclusive of the right established, and could be impeached only in an appellate tribunal.

Though it is an undoubted case of jurisdiction, if, on demurrer, the court would render judgment in favor of the actor; it is also a case of undoubted jurisdiction, though the complaint, petition, or bill, or other pleading of the actor, is demurrable, if the court has power and authority to decide *432 on its sufficiency. The power to decide upon the cause of action, as presented by the pleadings, is jurisdiction, like the power to decide any other legal proposition which the case may involve. — Freeman on Judgments, § 118. In King v. Kent, 29 Ala. 542, the Orphans’ Court, having jurisdiction to order a sale of lands of a decedent, had granted an order on a petition wholly insufficient in averment of jurisdictional facts, if a demurrer or a motion to dismiss had been interposed ; but the decree being collaterally assailed, every reasonable intendment was made in support of it, and all questions of pleading regarded as conclusively adjudicated. And in the subsequent case of Wright v. Ware, 50 Ala. 557, considering the same question, it was said: “ All questions of pleading, which the court had the right to decide, are conclusively adjudicated, and whether correctly or not is not the subject of inquiry.” A court, having jurisdiction to decide whether the case presented by the pleading, in the mode prescribed by the constitution and the practice of the court, falls within its jurisdiction, may err in its judgment; but the judgment is not void : it is merely erroneous, and is conclusive until reversed or vacated. If an action of ejectment, or a real action, were instituted in the Court of Chancery; or an indictment, or information for crime, were preferred; the case would be coram non judice, and the decree pronounced void. Or, if, in the mode of pleading at common law, any cause of action cognizable exclusively at law was presented, the decree of the court would be void. But, if, by appropriate pleading, a case was presented, of which the court would have jurisdiction, if there was not an adequate remedy at law, the error of the court in adjudging that it had jurisdiction, though the bill disclosed the adequacy of legal remedies, and was demurrable, would not render the decree void. Nor would a decree be void, relieving against a judgment at law, because the bill disclosed there was no fraud, accident, or surprise, which prevented the complainant from making defense at law; or which showed that the defense had been made, and was unsuccessful. It would be erroneous, and reversible, but binding and conclusive until it was reversed. A court, having jurisdiction to decide the case as presented, does not avoid its judgment, by deciding erroneously that it belongs to a class in which relief ought to be granted.

“ The line which separates error in judgment from the usurpation of power, is very definite, and is precisely that which denotes where a judgment or decree is reversible only by an appellate court, or may be declared a nullity collaterally, when it is offered in evidence in an action concerning the matter adjudicated, or purporting to have been so.”— Voor *433 hees v. U. S. Bank, 10 Pet. 474. Where a court of superior or of general jurisdiction is presented with a case of such character that, before rendering a final decree or judgment, it must determine whether it has jurisdiction to pass such judgment or decree as is invoked, and it is passed, collaterally the jurisdiction can not be assailed, nor the validity of the judgment or decree be drawn in question. The court has power, and is bound to hear and determine, and the case is co-ram judice. — Deguindre v. Williams, 31 Ind. 456; Shroyer v. Richmond, 16 Ohio St. 455; Cox v. Thomas, 9 Grat. 312.

11. The original and amended bills disclosed that the tenant for life, supposing herself clothed with the power, had .sold and conveyed the premises in fee to Winter, for their full value; that the purchase-money had been invested by the life-tenant in the purchase of other property, title to which had been made to a trustee, to hold for her life, with remainder on her death to her surviving children ; that the property had been purchased as a homestead for the life-tenant and her children, the remainder-men, and was of greater value, and a more suitable and profitable investment, than the premises sold and conveyed by the life-tenant. The insolvency of the life-tenant and of her husband, and their consequent inability to make good their covenants of warranty, if Winter was evicted by the remainder-men, is also averred. The prayer of the bill is, that the remainder be cut off, and the remainder-men barred from asserting it against Winter, the purchaser, and they compelled to accept the remainder in the lots purchased by the life-tenant, and conveyed as aforesaid, in full satisfaction of the remainder in the premises now in controversy ; or, if that relief could not be granted, that the lots so purchased by the life-tenant be charged as a security for the payment of the money paid her by Winter, and the contract of purchase rescinded; and for general relief. On this bill, the Court of Chancery, having jurisdiction of all parties in interest, rendered the decree barring and enjoining the lessors of the plaintiff from asserting their estate in remainder.

It is not necessary, and it is -no part of our province or purpose now, to vindicate the correctness of this decree. It may be erroneous, and it may be that, on demurrer, or motion to dismiss for want of equity, the chancellor should have dismissed the bill. These were questions he had jurisdiction to decide ; and if he erred, the law appoints the mode of correcting the error. Until the decree is reversed, it is binding and conclusive, if the case, as presented by the bill, was of such a character that the court was bound to hear and determine whether it had jurisdiction to grant relief. There are many *434 facts and circumstances, under which a purchaser, of the fee simple from the tenant of the particular estate would have an equity to compel the remainder-men to conYey to him the estate in remainder, or a right to a decree barring and enjoining them from asserting against him the estate in remainder. The alienation of the estate by the tenant for life passed merely the particular estate — the estate with which she was invested, and of which she had the power of disposition. It has no legal operation on the estate in remainder, neither discontinuing nor defeating it, though it may by its terms purport to convey the fee-simple, and was intended to pass it. But* if the remainder-men were adults, and accepted a part of the purchase-money as compensation for the estate in remainder, they would, in a court of equity, be estopped from asserting their legal estate, and the court would compel them to convey to the purchaser, or bar them from asserting the legal estate against him. The acceptance of a part of the purchase-money, as compensation for the remainder, would be a ratification and adoption of the unauthorized alienation and conveyance. So, if the tenant for life should invest the purchase-money in the purchase of other property, taking a conveyance to herself for life, with an estate to the remainder-men ; and they, with full knowledge of all the facts, should accept the conveyance; the purchaser would have an undoubted equity to call for a conveyance of the estate in remainder. It is a plain principle of justice, of right, and of law, that a man can not accept the benefits, and reject the burdens of a transaction. Upon this principle, the books abound with cases in which those who are entitled to avoid a sale, or to adopt and ratify it, or to claim under or in opposition to a conveyance, by accepting the proceeds of the sale, or the benefits of the conveyance, preclude themselves from avoiding it. — 2 Smith’s Lead. Cases, 742. The sale or conveyance may be of personal property* title to which will pass by parol; the estoppel will prevail in courts of law. But, if it is of lands, title to which, in courts of law, can pass only by writing, the estoppel will not prevail, and can not be enforced, elsewhere than in equity. — McPherson v. Walters, 16 Ala. 714; Walker v. Murphy, 34 Ala. 591.

12. While this may be true of adults, it is insisted that a court of equity, being without jurisdiction to decree a sale of the lands of an infant, is without jurisdiction to ratify or confirm an unauthorized sale of his lands by a guardian or a trustee, or by a stranger intruding himself into the relation of either; and that no estoppel can be raised against them. Whatever may be the doctrine prevailing in the Court of Chancery in England, or whatever contrariety of opinion, or *435 of doubt, may prevail in the different States ,as to the jurisdiction of a court of equity to decree a sale of the real estate of an infant; in this State, the jurisdiction must be regarded as existing. — Ex parte Jewett, 16 Ala. 410; Rivers v. Durr, 46 Ala. 418. The jurisdiction does not spring from, nor is it dependent upon, the character of the estate, — whether absolute or contingent; whether in possession, or the possession postponed until the happening of a future event. It rests upon the power and duty of the eourt to protect infants, — to take care of, and preserve their estates, while under disability debarring them from the administration of property. The courts would be more reluctant to decree the sale of an estate in remainder, or of a contingent estate, lest it might operate a sacrifice of the interests of the infant; but the jurisdiction exists, though it may be more seldom and more sparingly exercised. It may be, the infant has no other source from which maintenance and education can be derived. Or, it may be, the estate is deteriorating in value, without fault or neglect on the part of the tenant of the particular or prior estate, and that the deterioration will continue, so that, when the preceding estate expires, it will be, if not valueless, of greatly less value than when the court is requested to order a sale. A sale is then necessary, for the maintenance and education, or to conserve the interests of the infant, and it has been the practice of Courts of Chancery in this State to decree it.

The ease of Crawford v. Cresswell, 55 Ala. 497, does not, as is insisted by counsel for the appellant, cast any doubt on the existence of the jurisdiction. The case was before the court on appeal from the decree of the chancellor, ordering a different investment of trust funds from that which the will directed. The decree was not collaterally drawn in question. Whether the chancellor’s decree would, in any event, be sustained on appeal, was not decided; but it was held, the power ought not to be exercised (and in that case was improperly exercised), unless it was shown by clear, precise averment of facts, supported by convincing evidence, that a necessity existed for a conversion of the funds, and that the conversion would not prejudice the remainder-men.

The reasons controlling the English Court of Chancery, for repudiating jurisdiction, to decree a sale of an infant’s real estate, seem to have been, that on the death of the infant, the course of descent might have been interrupted; and if converted into personal property, he could, during minority, bequeath it. The first reason could never have been of force in this State, as the same persons who would take real estate by descent, as heirs, would take personal property, as next of *436 kin under the statute of distribution. Each reason subordinates the necessity and interest of the infant while living to that of those who would succeed to the estate on his death ; while, with us, the court looks only to the care, protection, and advantage of the infant. — 2 Perry on Trusts, § 605. In England, real estate may be of fixed and certain value, and the better investment for infants, or other persons resting under disability. The courts here are admonished that real estate is fluctuating in value, and often in some kinds of personal property investments are of more certain value, yielding a larger and more reliable income. There seems no substantial reason for distinguishing, here, between the power of the court to decree a sale of real and of personal property; and in practice none has been recognized.

The tenant for life was the mother of the remainder-men, and the sale and conveyance was made by her and her husband, the father, the natural guardian of the remainder-men. When it is manifestly for the benefit of an infant, courts o£ equity will permit trustees and guardians to change the character of his property; and if without the authority of the court the change is made, the court will sanction and confirm it, if under the circumstances it would have decreed the change. — Inwood v. Twine, Ambler, 419; Bronfield, Ex parte, 1 Vesey, jr., 453; Snowhill v. Snowhill, 2 Green’s Ch. 22, Neither the tenants for life, nor the father, stood in the legal relation of trustees, or of guardians of the estate of the remainder-men. Yet it can not be doubted that, on attaining majority, the remainder-men could have elected to accept the investment made by the life-tenant, and to have adopted the conveyance she had taken. Nor can it be doubted that, on the expiration of the particular estate under the will, and under the conveyance, each expiring on the happening of the same event, they could have asserted a lien upon the premises,conveyed, for the purchase-money received from Winter, if they preferred.it, to asserting the estate in remainder in the-premises in controversy. — Broome v. Curry, 19 Ala. 806. The wrongful alienation by the tenant for life, while incapable of operating to their injury, clothed them with these several dis-' tinct, conflicting rights. If they accepted the investment made.by the life tenant, or claimed a lien on the premises conveyed, for the purchase-money the life tenant had received and invested, the wrongful alienation was ratified and confirmed. During infancy, the remainder-men were thus clothed with inconsistent and conflicting rights, between -which they were incapable of electing, and yet having the right of elect-’ ing when they attained majority. While an infant can not *437 make an election, a court of equity has undoubted jurisdiction to elect for him. — l Lead. Cases Eq. (Part 2) 1169.

It is also true, that an infant may not create an estoppel; yet, under circumstances, the benefits of a particular transaction may have been so appropriated for his advantage, that he will not be heard to gainsay it. A sale of lands, descending to him, may have been made under an order of court void for want of jurisdiction ; the purchaser can not repudiate his contract to pay the purchase-money, unless the infant is brought before a court of equity, and an election made for him whether the sale shall be confirmed or repudiated. — Lamkin v. Reese, 7 Ala. 170; Bland v. Bowie, 53 Ala. 153; McCully v. Chapman, 58 Ala. 325; Merritt v. Horne, 5 Ohio St. 307. No adult, infant, lunatic, or married woman, can be permitted to receive, hold, and enjoy the proceeds of a sale of property, whether the sale is by an order of a eourt irregular and void, or by the wrongful act of an individual, without being estopped from a repudiation of the sale. In Commonwealth v. Sherman, 18 Penn. St. 346, it is said: “ Equitable estoppels of this character apply to infants, as well as adults; to insolvent trustees and guardians, as well as persons acting for themselves; and have place, as well when the proceeds received arise from a sale by authority of law, as where they spring from the aet of the party.” Of course, it must appear that the sale is for the benefit of the infant, or the court would not prevent him from asserting his title, though it would protect the purchaser by decreeing him a lien or trust for the repayment of such sums as had been applied to the benefit of the infant.

Notwithstanding the infancy of the remainder-men, there are grounds on which the court of equity had jurisdiction to interfere, and pronounce the decree rendered. Whether the case presented was of the class in which relief should be granted — whether facts were pleaded and proved justifying relief — were inquiries the court was bound to make, and decide. However erroneous may be the decree — however mistaken may be the judgment of the court — however irregular may have been the course of proceeding — until reversed, the decree is binding and conclusive.

14. The action of ejectment is a possessory action. A plaintiff, pursuing it, can not recover, unless at the commencement of the action he had a legal title, entitling him to immediate possession. Title and right of possession, acquired after the commencement of the action, will not authorize a recovery. — Tyler on Ejectment, 76; Alden v. Grove, 18 Penn. St. 377; McCool v. Smith, 1 Black (U. S.), 459. The rule is of very general application, that facts not occurring until after *438 the commencement of an action, essential to support the plaintiff’s recovery, will not support the action.' — Donaldson v. Waters, 30 Ala. 175. Insufficiency or defects of evidence, then existing, may be supplied, as in Ridgway v. Glover, 60 Ala. 187; but the right, and the facts necessary to support it, must exist when the action is commenced. The decree of the Court of Chancery, barring and enjoining the lessors of the plaintiff from asserting the estate in remainder, was of full force and unreversed, when the action was commenced. The plaintiff was then without a legal title to, and without the right of immediate possession of the premises. The reversal of that decree was essential to restore his lessors to the legal title, and the right of possession. A reversal, subsequent to the institution of the suit, could not, by relation, authorize them to recover in an action prematurely commenced.

As this view is decisive of the case, it is unnecessary to consider any other question presented by the record. The judgment on the appeal taken by Lydia H. Pope and others, No. 287, must be affirmed; and on the appeal taken by Winter and others, No. 288, the judgment is reversed, and the cause is remanded.