Mullinnix v. Brown

Deemer, J. David Mullinnix died intestate on the 29th day of November, 1909, seised of the real estate in controversy, which consists of fifty-two and one-half acres of land situate in Keokuk county, Iowa. Geo. P. Mullinnix, a son, was appointed administrator of his estate, and duly qualified as such. Certain claims amounting to approximately $147 were filed against the estate and allowed by the administrator, and, upon application made to the probate court, the said administrator was authorized and directed to purchase a monument at a cost not to exceed $150 to mark the grave of the deceased. Pursuant to this latter order, the administrator contracted for a monument, agreeing to pay therefor the sum of $115. The personal property of the deceased was all exhausted in paying the expenses of the last illness and funeral expenses, save the sum of $49.81. On the 3d day of February, 1910, the administrator filed his application in due form to sell the real estate of which the intestate died seised, making all the heirs of the deceased parties defendant thereto. Upon presentation of this application to the district judge, an order was made directing that service of notice thereof be given by personal service on all parties interested at least five days prior' to February 25, 1910, and that, in case the residence of any interested party is unknown, service be had by posting one written notice at the front door of the courtroom at least five days prior to the said 25th day of February, at which time it was ordered that the application for authority to sell be heard. Most of the defendants accepted service of the notice, but it. was personally served upon the defendant and appellant, Elizabeth Brown on the 8th day of Eebruary, proof thereof being filed on .the 17th of that month. Anna O. Convey, one of [471] the appellants, accepted service of notice and Hattie Boe, a defendant, but not an appellant, was served by the posting of the notice at the front door of the courthouse, which posting with the proof thereof was made on the 7th day of February, 1910. Appellant, Elizabeth Brown, appeared and filed answer to the application, in which she claimed that the court had no jurisdiction of the matter because the service of notice on Hattie Boe was insufficient, and she also pleaded that part of the property which the administrator asked to sell was the homestead of the deceased, and not subject to his debts. She further pleaded another action pending, this being a partition proceeding in which she, as plaintiff, with her husband, Bezin Brown, Anna C. Convey, and her husband, as plaintiffs, brought an action against the other heirs of the deceased for the partition of the real estate in controversy. In this action it was alleged that each of the heirs of the deceased, being sons and daughters, was entitled to an undivided one-sixth interest in the said real .estate, and, alleging that the same could not be partitioned in kind, they asked that the same be ordered sold and the proceeds distributed to the prospective owners pro rata, according to the shares held by each. Some other defenses were pleaded which need not be noticed. The petition in the partition case seems to have been filed on January 20, 1910, notice thereof by publication having been given to two of the heirs who are and were nonresidents of the state. The administrator entered an appearance to the partition suit on the 1st day of February, 1910, and filed an answer in which he alleged that the year for filing claims had not yet expired, and that it then appeared that the debts of the deceased were largely in excess of the personal property left by him, and he asked that the partition case be abated or continued until the time for filing claims against the estate had expired. On the 15th day of February plaintiffs in the partition action formally made the administrator a' [472] party defendant, and on the 22d day of that month the plaintiffs in the partition suit filed an amendment to their petition. Notice of the petition and of this amendment was given to various of the parties defendant by publication, the last of which was on the 17th day of March, 1910. On these issues the administrator’s application for the sale of the real estate came on to be heard at the regular February term of court some time in March of the year 1910, resulting in an order for the sale. It is from this order that Elizabeth Brown and Anna Convey appeal. Many propositions are relied upon for a reversal, and to such as are deemed controlling we shall now turn our attention. It is contended for appellant that the order should not have been made for the reason that forty acres of the land was the homestead of the deceased at the time of his death. A careful examination of the record shows that this claim is without support in the testimony. We shall not set out the evidence upon which we base our conclusion, for to do so would serve no useful purpose. 1. Estates of decedents: sale of real estate: notice: waiver I. Anna Convey, one of the defendants and appellants, accepted due and legal service of notice of the application to sell, waived time, _ and asked that an order be granted as prayed. Such being the situation, she is in no position to complain. 2. Same: notlceBut it is contended that one of the heirs who was made a party to the application to sell, to wit, Hattie Boe, was not served with notice, and that the court by reason of tihat fact was without jurisdiction to enter any order. That there was an attempted service of notice upon her is apparent from what we have already said, but it is argued that this service was entirely unwarranted and without authority in law and that by reason thereof the court had no power or authority to grant the order prayed. Section 3324 of the Code provides: “Before any order to that effect can be made, all persons [473] interested in such real estate shall be served with notice in the same manner as is prescribed for the commencement of civil actions, unless a different one is prescribed by the court or judge.” This section gave either ,the court •or the judge power to prescribe the notice which may be given of such applications as are here involved. Such an order was made in this case and compliance therewith was had by the administrator. The most that can be said regarding this matter is that the notice was defective or insufficient. It is not a case of no notice, but of defective notice, and, as Hattie Hoe is not complaining, it is not for her codefendants to make complaint. Counsel’s contention that the notice must be served like an original one can not be sustained, for the section quoted undoubtedly has reference to the manner of service rather than the substance of the notice. It is not true, as counsel contend, that failure to give notice of an application to sell real estate to some one of the interested parties renders the proceedings entirely void and open to collateral attack at the instance of some party who was properly served. 3' to^ive no“re tice» remedy. The remedy, if there be any, is for' the party not served to apply at a proper time for a hearing or a reopening of the case. As a general rule, one properly served with an original notice can not complain of the fact that a codefendant was not properly served with notice. None of the authorities cited and relied upon by appellants upon this proposition seem to run counter to the views here expressed. At any rate, this is not a case of no notice, but where, at most, the service was defective. In such cases the judgment is not void. See, as sustaining these views, Spurgin v. Bowers, 82 Iowa, 187; Myers v. Davis, 47 Iowa, 325; Mullin v. White, 134 Iowa, 681; Wescott v. Sioux City, 141 Iowa, 459. [474] 4‘ tionfaEate'ment of sale. [473] II. Further claim is made that the application for the sale of the real estate was made after the commence [474] ment of the partition suit, and that the whole matter should have been adjusted in the latter action and the application to sell abated. This is upon the theory that more adequate and compíete relief could have been granted in the partition case. But this is not true. Of course, partition suits may be brought before the time has expired for the filing of claims against the estate of one deceased, but the more orderly procedure is to defer such actions and allow the matters to proceed in prohate, giving to the administrator the right and requiring of him the duty of selling the real estate when necessary to pay the debts of the estate. Counsel seem to rely upon Hawk v. Day, 148 Iowa, 47, in support of their proposition that the whole matter should have been settled in the partition suit, hut this case does not support their contention in any particular. In Thomas v. Thomas, 73 Iowa, 657, it is said: “It is plain that the lands can not be partitioned subject to the claims of the creditors of the estate, for it can not be determined just what lands, after the payment of debts, will be owned by the estate, or will descend to the heirs. -The creditors can not be subjected to delays or impeded in the enforcement of their claims against the lands of the estate. So the law will not permit the ,vain thing to be done of partitioning lands when it can not be determined what interest the heirs have in them, nor just what lands are subject to partition.” The same rule was announced in Snyder v. Snyder, 75 Iowa, 255, wherein was said: “Now, it is true a partition of lands should not be ordered until it is determined that the personal estate is sufficient to pay the debts. Thomas v. Thomas, 73 Iowa, 657. But it is not a question of jurisdiction. An action may be commenced, and, if it does not appear at the time partition is made that it will not be necessary to resort to the real estate to pay the debts, the decree partitioning the lands ought not to be disturbed,” [475] These cases were followed in Smith v. Smith, 132 Iowa, 701. See, also, Minear v. Hogg, 94 Iowa, 641. The pendency of the partition proceedings was therefore no reason for abating the application to sell the real estate for the payment of debts. s Same- sale natur? d0efbts: debts’ III. Again, -it is said that no order to sell should have been made because of lack of proof of the allowance of any claims save that for the monument, which was secured upon order of court, and that there exists no authority in law for ordering a sale of real estate for the purpose of paying such claims. In this contention counsel are in error. The record does show'the allowance of claims against the estate of the deceased for more than the amount of money and personal property in the hands of the administrator. Moreover, we think that real estate left by one deceased may be sold upon proper application for the payment of such debts as well as for the funeral expenses of one deceased. 'Whilst counsel cite several cases which they claim support their contention, we find none which do so. The cost of a suitable monument for one deceased is as properly chargeable against his estate as are the funeral expenses; and that lands may be sold in the absence of a personal estate to meet such claims is entirely clear. See Crapo v. Armstrong, 61 Iowa, 697; Lutz v. Gates, 62 Iowa, 513. 6. Same: sale en masse. VI. Finally, it is contended that the court erred in not ordering a sale of a part of the land rather than the whole. Appellant Brown in her partition suit alleged that the land could not be divided, and she asked that it be sold and the proceeds divided. Moreover,, there is an affirmative showing in the record, that it was impracticable to sell the land otherwise than in a body. This testimony was undisputed and no reason appears for disturbing that part of the order. [476] 7- Same: sale to pay debts. [475] Something is also said to the effect that had appellant Brown been permitted to proceed with her partition [476] suit, and the application to sell had been abated or continued, some defects in the title of the property might have been cleared up and a better price obtained for the land. We fail to discover anything in the record substantiating this claim. Partition suits can not ordinarily be made to serve the purposes of actions to quiet title, and no showing is made to substantiate the claim, that the lands would have brought more' at partition s'ale than they will under the order made by the probate court. For a small case the record is unusually complex and unsatisfactory. We find something like six abstracts in the case for which there is no possible excuse, save -to render our burdens more onerous than we should be called upon to bear. In view of the great number of documents filed, it has been difficult to arrive at the exact points for decision. We discover no reason for disturbing the order of the trial court, and it must be, and it is, affirmed.