Adams v. . Howard

Merrimon, C. J.: According to the pertinent statutes and practice prevailing at the time the plaintiff filed his petition *18 to obtain a license to sell all the land of his intestate to make assets to pay debts, the late Court of Pleas and Quarter Sessions had complete jurisdiction of the parties, including the infant defendants, and of the subject-matter of the petition. The petition alleged that a sale of all the land of the intestate was necessary, and the Court granted the prayer thereof, and directed a sale of the whole of the land specified therein exc'ept the “ widow’s dower.” The administrator at once duly sold this land, except the reversion of that part so allotted to the widow. As to that sale, no question is made. Afterwards, in 1866, the administrator, acting upon the same grant of license, sold the said reversion in good faith and for a fair price, one of the heirs, and a defendant, being the purchaser. That sale was duly advertised, but no special notice of it was given to the present appellants, though they were in fact present at the sale; nor was any fresh license granted. A fresh license was not necessary — that first granted authorized the sale. It is insisted, however, that the sale of the reversion was never reported to the Court and confirmed, and, therefore, there was a fatal irregularity. We think there was irregularity, but it ought not to be treated as fatal in this case. The statute (T7ie Code, §944), the provisions of which were in force during and before the year 1882, authorized the transfer of the proceedings in the Court of Pleas and Quarter Sessions to the Superior Court for proper purposes. It does not appear affirmatively that it was so transferred, but the appellee filed his petition in the Superior Court in the year 1882 praying the Court to so transfer the same, alleging and suggesting that the matter of the petition had not been completed, that the sale of the reversion in 1866 had been made, reported to and confirmed by the Court, and no proper entry of the same had been made; and asking that the record be amended nunc pro tunc so as to show the same, and that the administrator be directed to *19 make title to the land to him. The Court (the Clerk) allowed the motion. It clearly treated the matter of the petition as transferred. It was identified by the appellee’s petition and the order of the Court — these had direct reference to it and, for the purposes intended, was in effect transferred and must be so treated. If this w.ere not™so, it might yet be transferred for proper purposes. The matter of the petition .was of the nature of a special proceeding under the present method of civil procedure, as to which the Clerk might act as and for the Court in making the order of transfer, and making appropriate orders in "and about the same, as in other cases out of term-time. The Code, §§ 132, 944. Notwithstanding the long lapse of time, the Court might in a proper case allow such amendment to be made nunc pro tunc, but regularly it should be done #only upon notice to parties to the proceeding or action. It is irregular to hear and act upon such applications without such notice, and, ordinarily, an order making such amendments of importance will be set aside. We think, however, the Court ought not to disturb the order in question, or at all interfere in the matter of the petition. As we have seen, the Court had jurisdiction of the parties and the subject-matter. The property was sold for a fair price. The appellants were present at the sale, and though some of them were infants, several of them were of age, and all had a common interest as heirs of the intestate. Those of age had motives to object to irregularities and to resist and prevent any fraudulent practice. The proceeds of the sale were applied regularly in the administration of the estate of the intestate. It is not alleged or suggested that there wasfraud on the part of the administrator or any other person in the sale of the property, or the application of the proceeds of the sale. The administration was closed and the appellants (most if not all of them) received respectively his or her small share of the assets remaining to be distributed to the next of kin. The administrator has *20 died. After the lapse of twenty years, the appellants ask to set the sale aside for irregularities, without showing that they have been at all prejudiced by them, or at all. It was earnestly suggested on the argument that the appellants might have shown that a note or claim against the estate was not due, was barred by the statute of limitations, or had been paid. They might have had ample remedy against the administrator in that case in the final settlement of the estate; and besides, if a sale of the real property was unnecessary, in whole or in part, this should have been shown at the time the license to sell the same was granted. Moreover, the appellants should have taken advantage of irregularities in apt time — within a reasonable time. Some of them, it is true, were infants, but their co-heirs, brothers and sisters, interested like them, might have objected to irregularities years before they did. The motion is without merit? and the Court properly denied it. Affirmed.