Vasek v. Vasek

Barnes, J. This is a controversy between the heirs of Anton Vasek, deceased, and the administrator of his estate over an item of $2,797.49 in the latter’s final account. To pay debts the administrator, under a license from the district Court for Colfax county, sold for $18,240 a quarter section of land encumbered by a mortgage for $2,500. His license directed him to make the sale “subject to all liens and [618] encumbrances” upon tbe following terms: Five thousand dollars in cash, half the balance upon confirmation, and the remainder in three years, “to be secured by first mortgage.” In offering the land for sale, the administrator announced that from the cash payment he would pay off the mortgage and convey to the purchaser a clear title. The sale for $18,240 was reported to and confirmed by the district court. From the proceeds the administrator paid off the existing mortgage, and he ' afterward conveyed the land to the purchaser, taking a mortgage thereon to secure the unpaid balance of the purchase price. His final account showed the receipt of $18,240,. the purchase price of the land sold, and the disbursement of $2,797.49,. the amount of debt and interest paid on the released mortgage. To the allowance of the latter item the heirs of decedent excepted. The county court overruled the exceptions, and the heirs appealed to the district court, where the judgment of the county' court was affirmed. From the affirmance, they have appealed to this court. The heirs contend that the administrator, in paying mortgagor’s debt and in selling the land free from encumbrance, departed from mandatory provision of statute,- and that he is chargeable in his final account with the entire-purchase price without any credit for the amount thus illegally paid. The statute provides: “All sales and conveyances of land made by executors or administrators, pursuant to the provisions of this article, shall be subject to all charges thereon, by mortgage or otherwise, existing at thfetime of the death of the testator or intestate.” Rev. St. 1913, sec. 1477. The record shows that the sale was irregular, but it was approved and confirmed by the court, and it was therefore binding upon all parties. If the heirs had appealed from the order of confirmation, it would no doubt have been corrected, but they failed to object to the order or perfect an appeal, and it became a binding adjudication and was final. While it is true that the statute was not strictly followed, we are of opinion that the order was not void. The heirs waited until after the sale and confirmation [619] and received the full benefit thereof. After having, by their silence, lulled the administrator into security, they now-attempt to make him give them $2,'797.49, to which they have no claim either in equity or good conscience. We-are therefore of opinion that they cannot enforce such a-claim. The record shows that the land sold for its fill! value, free from encumbrances, and that the heirs were* not injured by the action of the administrator. The order of sale directed him to secure a share of the unpaid purchase price by a first mortgage. He could only comply with this requirement by discharging the lien of the existing mortgage. This he did by paying the same out of the proceeds of the sale. After allowing him credit for the amount paid by him for that purpose, the heirs will receive, the full amount to which they are justly entitled. In settling the estate, therefore, he should be allowed credit for the item in dispute. Millard v. Harris, 119 Ill. 185; Abby v. Fuller, 8 Met. (Mass.) 36; Russell v. Wheeler, 129. Mich. 41. The holding of the district court is in- harmony with: these views, and the judgment is Affirmed-.. Morrissey, C. J., Sedgwick and Hamer, JJ., not sitting..