Robertson v. Bradford

BRICKELL, C. J.

— The question of merit and importance in this case, that which is decisive of the rights of the parties, has been of frequent consideration and decision in this court, and we deem further discussion of it unnecessary. The legal title to the lands in controversy resides in the appellant; the proceedings in the court of probate, had at the instance of the personal representative of her ancestor, did. not operate its divestiture, as we have heretofore decided. — Robertson v. Bradford, 70 Ala. 385. The petition or application to the court of *118 probate for an order of sale, not alleging the existence of the facts upon which the jurisdiction of the court is made by statute to depend, the order granted was coram nonjuclice,. It did not confer upon the personal representative authority to sell, and the sale made in pursuance of it was a nullity. The sale was made, however, the value of the premises being bid and paid, received by the personal representative, and by him applied to the payment of the debts of the ancestor, removing them as charges upon the personal estate, and to the maintenance of the appellant in the helplessness of her infancy. Restitution of it is not tendered, nor is it intended. In a court of equity, these facts estop the appellant from asserting her legal title to the prejudice of the purchaser, or his privies. There is no principie of law better settled, or resting on wiser considerations of public policy, and higher considerations of justice, than that no person, whether sui juris, or under disability, and the character of the disability is not of importance, who has received and retains the fruits of a judicial proceeding, can be heard to assail it, either for irregularity or illegality, to the prejudice of others who have in good faith relied and aeted upon it as valid. In the application of this principle, it is not of importance, that the proceeding is void because of a want of jurisdiction in the court entertaining and sanctioning it. The foundation of the principle is, that parties can not act upon and adopt such parts of a transaction as may be favorable and beneficial to themselves, and, at the same time, repudiate it so far as it may involve them in corresponding duties to others, who have yielded the right and advantage to them. — Pickens v. Yarborough, 30 Ala. 408; Williamson v. Ross, 33 Ala. 509; Wright v. Ware, 50 Ala. 549; Bell v. Craig, 52 Ala. 215; Bland v. Bowie, 53 Ala. 153; McCully v. Chapman, 58 Ala. 325; Goodman v. Winter, 64 Ala. 410.

The assignments of error relating to the objections to evidence have not been insisted on in the argument of counsel, and we regard them as waived. — 1 Brick. Dig. 102, § 285.

Affirmed.