Stack v. Royce

Norval, J. This is an action of ejectment brought by the plaintiff in error, to recover the possession of the northwest quarter of section 11, in township 4, range 8 west, in Nuckolls, county. There was a trial to a jury, who, under the direction of the court, returned a verdict for the defendant. Plaintiff presented a motion for a new trial, which was overruled, and judgment entered on the verdict. The plaintiff claims title to, and the right of possession of, the real estate as the sole devisee under the last will and testament of James Stack, deceased. The defendant is the tenant of one Mary B. Snyder, who claims title — 836 — under a deed from the administrator of the estate of said James Stack, deceased, and other mesne conveyances in her chain of title. On the 8th day of May, 1878, one James Stack, then a resident of Clay county, died at Harvard, in said county, seized of the real estate in litigation. He left a will bequeathing all his property to his wife, the plaintiff herein. On the 15th day of June, 1878, the will was admitted to probate by the county court of Clay county, and the plaintiff was appointed as sole executrix. Subsequently she resigned as executrix, and oxi the 2d day of February, 1880, one William Hammond was appointed by the county court of Clay county administrator of said estate with the will annexed. Upon the trial the defendant introduced in evidence, over the objection and exception of plaintiff, the petition of the administrator of the estate of said James Stack for license to sell the real estate in controversy, the order of the district judge fixing the time and place of hearing the same, the license issued to the administrator, report of sale, order of confirmation, and the deed of the administrator to the purchaser. Plaintiff now complains of the admission of said testimony, and of the instruction of the court to the jury to ¡return a verdict for the defendant. Jt appeal’s from an inspection of the petition of the administrator for license, and the proceedings had thereunder, that on the 17th day of May, 1880, at Clay Centex-, the Horn A. J. Weaver, the judge of the first judicial district, which included the county of Clay, on the petition of said administrator for license to sell the real estate above described, to pay the debts of said estate and charges of administration, made an order that all persons interested in said estate appear ‘ before him at his chambers, at Falls City, on the 24th day of July, 1880, to show cause why a license should not be granted to the administrator to sell said real estate. The petition and the order to show cause — 837 — are entitled in the district court of Nuckolls county, and on the 20th day of May, 1880, were filed in the office of the clerk of said court. Hearing was had at the time and place stated in the order to show cause, and thereupon Judge Weaver issued a license to said Hammond to sell said real estate, on his giving a bond in the sum of $1,000,- to be approved by the clerk of the district court of Nuckolls county. By the license the administrator was ordered to make return of his doings thereunder to the district court of said county, and the clerk of said court was directed to copy the license into his journal, file the original in his office, and furnish the administrator with a certified copy of the same. All this was done as directed, the license being filed on September 11, 1880. The bond of the administrator was filed.and approved by said clerk on September 17th. On the day following, previous notice of the time and place of sale having been given, the land was sold, Mary A. Colvard being named in the report of sale as the purchaser. On the 7th day of November, 1881, the administrator made and filed his report of sale in the office of the clerk of the district court of Nuckolls county. The next day said court approved and confirmed the sale, and ordered the administrator to execute and deliver a deed to the purchaser. Subsequently, on the 2d day of May, 1883, the administrator made his deed, in which S. C. Colvard is named as grantee. It appears that a mistake was made by the administrator in his report of the sale, in the Christian name of the purchaser, the name of the purchaser being S. C. Colvard, instead of Mary A. Colvard, as reported. On motion of the administrator the district court of Nuckolls county, on the 9th day of October, 1883, ordered the report corrected to correspond with the facts, which was done. It is claimed by the plaintiff in error that the proceedings, under which the administrator’s deed is based, are without jurisdiction and void, for the reason that the court — 838 — Shad no jurisdiction over the person of Hannah Stack, and because the proceedings were not had in the district court of Clay county, that being the county in which the administrator was appointed. The determination of the question of jurisdiction thus presented necessitates an examination and construction of some of the provisions of the statute governing proceedings by administrators and executors in the sale of real estate which were in force at the time the license in question was granted. Section 67, chapter 23, Compiled Statutes 1881, entitled “Decedents,” provides, “When the personal estate of any deceased person, in the hands of his executors or administrators, shall be insufficient to pay all his debts, with the charges of administering his estate, such executors or administrators may sell his real estate for that purpose, upon obtaining a license therefor, and proceeding therein in the manner hereinafter provided.” Section 68 provides that “In order to obtain such license, the executor or administrator shall present a petition to the ■district court from which he received his appointment, setting forth the amount of personal estate that has come to his hands, and how much thereof, if any, remains undisposed of; the debts outstanding against the deceased, so far as the same can be ascertained; a description of all the real estate of which the testator or intestate died seized; and the condition and value of the respective portions or lots; which petition shall be verified by the oath of the party presenting the same.” Section 69 provides that “If it shall appear by such petition that there is not sufficient personal estate in the hands of the executor or administrator to pay the debts ■outstanding against the deceased, and the expenses of administration, and that it is necessary to sell the whole or some portion of the real estate for the payment of such •debts, the judge of the district court shall thereupon make an order, directing all persons interested in the estate to — 839 — appear before him, at a time and place therein to be specified, not less than six weeks and not more than ten weeks from the time of making such order, to show cause why a license should not be granted to the executor or administrator applying therefor, to sell such real estate of the deceased as shall be necessary to pay such debts.” Section 70 provides .that “A copy of such order to show cause shall be personally served on all persons interested in the estate, at least fourteen days before the time appointed for hearing the petition, or shall be published four successive weeks in such newspaper as the court shall order; Provided hoioever, If all persons interested in the estate shall signify in writing their assent to such sale, the notice ¡may be dispensed with.” Section 79 provides that “If the judge of the district court shall be satisfied, after a full hearing upon the petition, and an examination of the proofs and allegations of the parties interested, that a sale of the whole or some portion of the real estate is necessary for the payment of valid claims against the deceased, and charges of administration, or if such sale be assented to by all persons interested, he •shall thereupon make an order of sale, authorizing the executor or administrator to sell the whole, or so much and ■such part of the real estate described in the petition as he •shall judge necessary or beneficial.” The point is made in the brief of counsel for plaintiff that the court, in the proceedings had to sell the lands in controversy, and had no jurisdiction over the person of Hannah Stack, for the reason she was not named in the order to show cause why a license should not issue. The order is entitled: “In District Court, First Judicial District, Nuckolls County, Nebraska. In the Matter of the Application ■of Wm. H. Hammond, Administratorof the Estate of James Stack, Deceased, to sell real estate to pay debts.” In the body “it is ordered that all persons interested in said estate •¡appear,” etc. A copy of the order to show cause Was pub — 840 — lished in a newspaper for the length of time required by section 70, quoted above. That was sufficient. It was not necessary that the order should state the names of the heirs or of the persons interested. The statute does not require it, but prescribes that the court shall make an order directing all persons interested in the estate to appear before him at a time and place therein named. As said by Judge Maxwell in his opinion in McClay v. Foxworthy, 18 Neb., 298, “A proceeding under the statute to sell real estate of the deceased for the payment of debts against 'the estate is not, strictly speaking, an action. It is purely a proceeding in rem, where the principal questions involved are the amount of debts outstanding against the estate, the amount of personal property available for the payment of the debts, and the necessity to sell the land for which license is sought for the payment of the same. The proceeding is not adversary in its character, in the sense in which the term is used in an action, as only so much of the estate descends to-the heirs as exists after the payment of the debts.” In Hobson v. Ewan, 62 Ill., 146, it was held that the notice by an administrator of his application for an order to sell real estate, directed “to all persons interested,” was sufficient, and that it was not necessary to state in the notice the names of the heirs, or other interested parties. The petition presented by the administrator to Judge Weaver contained all the facts necessary to be set forth in a petition of that kind, or required by the statute. This is conceded by the plaintiff. The power of a judge of the district court, in a proper case, to hear and determine at chambers an application of an administrator or executor for a license to sell real estate to pay debts cannot be doubted. Not only is such authority impliedly conferred by the provisions of the sections above quoted, but such jurisdiction is expressly granted by section 339 of said chapter 23, which provides that “the judge of the district court of the state may, upon the application of an executor, — 841 — administrator, or guardian to sell or dispose of the real estate of decedents, spendthrifts, or minors, hear and determine the same at chambers in vacation,” etc.; and the power thus conferred may be exercised by a district judge anywhere within his judicial district, or by the district court of the proper county, when in session. The next important question to be determined is, whether the petition for such license is required to be filed in the district court, and if so, of which county? The one in which administration is granted, or the district court of the county where the lands lie? Or, is the application restricted to any particular district court of this state? Counsel for the defendant contends that the petition of an administrator or executor for license to sell real estate to pay debts is not required to be filed in any court, or with any officer of the same. He cites in support of his position section 68 above quoted, which provides that “in order to obtain such license the executor or administrator shall present a petition,” etc. The word “present,” in the connection used, was intended by the legislature to include not only the bringing of the petition to the notice or attention of the court or judge, but the filing of the application with the clerk of the district court having jurisdiction of the proceedings. It is unreasonable to suppose that the lawmakers intended so important a paper as the petition, which is the foundation of the proceedings, and without which the district court or judge has no power or authority to act, need not be made a matter of record. Courts speak only through their records. Looking to the proviso clause of section 339 of said chapter 23, it will be seen that in all cases where a judge of the district court orders a sale of any real estate while sitting at chambers, it is made his duty to cause a copy of the order to be filed in the office of the clerk of the district court, “ and said clerk shall thereupon record said order in the record book of said court before any sale shall be made as aforesaid.” It would be a strange pro — 842 — ceeding to require the order to be recorded, and yet not preserve the petition, the jurisdictional paper upon which the license and all subsequent proceedings are based. That such petition must be filed and preserved by the clerk, we have no doubt. To the district court of which county must the application be presented and the record of the proceedings be made? The language of section 68 is, that ^“administrator shall present a petition to the district court from which he received his appointment.” It may be observed that section 16 of article 6 of the constitution confers upon county courts original jurisdiction in all matters of probate, so that the district courts of the state have no power to appoint administrators or executors. Prior to the admission of Nebraska as a state into the Union, the probate courts had the power to grant license to administrators to sell real estate to pay debts and costs of administration. Section 68, as copied above, with the exception that the word “probate” appeared in the place of “district,” was enacted by the territorial legislature in 1860. By section 4 of article 4 of the constitution of 1867 the power to decree the sale of real estate was taken from courts of probate, and the legislature in 1873 changed section 68 as originally passed, by striking out the word “probate” and inserting the word “district” in its place. When probate courts had jurisdiction to license the sale of real estate, the statute required the petition therefor to be presented to the probate court of the county in which administration was granted. It was not the purpose of the legislature, in changing the section so as conform to the constitution, which conferred jurisdiction upon the district courts to grant such licenses, to change the county in which the application should be made, but it was obviously the intention of the law-makers that the petition should be filed and the proceedings should be recorded in the district court of the — 843 — county where letters of administration are granted. This has been almost the universal construction placed upon the section by the bench and bar of the state, and the legislature in 1887 recognized the wisdom of such construction by amending said section 68, by inserting therein after the words “district court” the words “of the county,” thereby making the meaning plain and removing all doubt. If search for a reason why the legislature required the application for a license to sell real estate by an administrator or executor, should be made to the district court of the ■county in which administration was granted is permissible, it may be inferred from the fact that, that being the county in which the deceased resided at the time of his death, usually more of the heirs and creditors of the deceased, and others interested in the settlement of the estate, reside in that county than in any other county of the state. There is no provision of statute which can possibly be construed fo confer jurisdiction in such proceeding upon the district ■court of the county where the real estate which is sought to be sold is situated. The administrator having received his appointment from the county court of Clay county, the district court of that county, or the judge thereof in vacation, had exclusive jurisdiction to license the sale of the real estate of the deceased, although the same was situated in another county, upon the filing of a proper petition in the district court of Clay county. No such a petition has ■ever been filed therein, nor was any record of the proceedings had before Judge Weaver made in said court, but the same was made in the district court of Nuckolls county. There was no authority for this. Where a district judge at chambers grants a license to an administrator or executor to sell real estate, the record of the proceedings must be made in the district court having jurisdiction to hear and determine the application. This is manifest from a reading of the proviso clause of section 339 of chapter 23, Compiled Statutes, entitled “Decedents,” which declares — 844 — “That in all cases where the judge shall order a sale of any real estate, while sitting at chambers, he shall make out in writing a copy of said order, and cause the same to be filed in the office of the clerk of the district court, and said clerk shall thereupon record said order, in the record book of said court, before any sale shall be made as aforesaid.” There can he no doubt when a petition, setting up the necessary facts for a license to sell lands for the payment of the debts of an estate, is filed in the district court having jurisdiction, which is acted upon by the judge therof in vacation and a license is granted, that mere errors or irregularities in the proceedings, when the essential requirements of the statute have been complied with, will not avoid the title of the purchaser when called in question collaterally. But the defects relied on in the case before us are not mere irregularities, but go to the jurisdiction. If the petition of the administrator for a license had not been filed, and the license and subsequent proceedings thereunder had never been recorded, in any district court of the state, we do not think it would be contended that the sale and administrator’s deed were valid. The fact that the application for the license was filed and the proceedings were recorded in Nuckolls county, and that such county and Clay were in the same judicial district, cannot make any difference. The district courts of the two counties are as separate and distinct as if they were in different judicial districts and presided over by different judges. We think the essential requirements of the statute have not been observed. For the reasons stated the judgment of the district court is reversed and the case remanded. Reversed and remanded.