Speck v. Wohlien

Scott, Judge, delivered the opinion of the court. As to the question whether the Land Court has jurisdiction to afford the relief ashed by the plaintiff, we are of opinion that if a case had been made which would have warranted the equitable relief sought by the plaintiff', the Land Court would have been the proper tribunal to hear and determine the cause. We understand that wherever, by the rules of equity, a party is ■ entitled to have a right to land vested in him, the remedy may be had in the Land Court. It is a mistake to suppose that the mere fact of a final settlement of an estate having been made in the county court, of itself gives a party a claim to relief that he would not otherwise have. Where estates have been settled and distribution made, this court has allowed one having a claim against an estate to come into equity for relief in the first instance, making the personal representatives, heirs and distributees parties, without having his demand first established in a court of law or county court. The Land Court has no jurisdiction of this case in the same sense that no other would have had jurisdiction, because the plaintiff did not show herself entitled to the relief she sought in the way in which it was asserted. When Wohlien, the father, died, the lot in dispute descended to his son, one of the defendants. Instead of suing the heir [315] or devisee, our law gives a power to the administrator or executor to sell the lands of a deceased person for the payment of his debts by conforming to the regulations prescribed by the statute. To this proceeding the heir is no party except so far as he pleases to make himself one, though he is bound by it when the regular legal steps have been taken to divest his estate. Now an order is made for the sale of a decedent’s land for the payment of his debts. For some reason or other the party purchasing under the order of sale fails to obtain a title to the land he purchased. On what principle can the purchaser call on the heir to perfect his title ? What is the difference between the heir and the debtor in an execution ? May not the heir say that he has had nothing to do with the matter ; that no act of his had been an inducement to the purchaser; that the law allowing a sale of his inheritance prescribes a way by which the purchaser may obtain a deed; he has therefore no right to call upon him for aid, as by no act or demand of his was the purchaser in the situation of which he complains. There is a large class of cases in which third persons are vested with a power to sell the lands of others, and it is no easy matter to distinguish, in principle, this case from any other of that class. An affirmance of the right to relief in this case would, in effect, overthrow the principle that courts of equity will not relieve against a defective execution of a legal or statutory power — a consequence which no one can contemplate without being struck with the inconvenience which may follow from it. The case of Bright v. Boyd, (1 Story’s Rep. 478,) is in point on this subject, and that, too, was the case of a sale of land by an administrator. The giving of a bond was a necessary prerequisite to a sale, and the administrator failed to give one. It was held that the omission, whether accidental or not, could not be treated as a mistake or accident remediable in a court of equity ; that courts of equity-, while they afford relief against a defective execution of a power executed by a private person, yet they can not afford relief against the defective execution of a power created by law, nor dispense with all the ne [316] cessary formalities. The same principle is recognized in the case of Moreau v. Detchemendy, (18 Mo. 522,) and applied to a deed executed by a sheriff. In this last case, the instrument was inoperative for want of a seal. There can be no substantial difference between a void instrument which has a mere physical existence and no deed at all. The case of Pottinger v. Pottinger, 2 Green. (N. J.) 157, merely shows that an administrator may enforce a contract made to purchase land at his sale under an order of court. Because courts of equity will not enforce the specific performance of a contract unless there is a mutuality of remedy between them, therefore it is argued that chancery would enforce the contract against the heir. But this does not follow. The mutuality would be confined to the administrator and purchaser, and would not extend to the heir, who Lad nothing to do with the contract between them. This is said in answer to the argument resting on this case, and is not intended to sanction the law of it. We do not consider that the case of the Heirs of Pratte v. the Heirs of McCullough, (1 McLean’s R. 69,) though conflicting with'those above cited, as sustaining the plaintiff in her claim to relief. In the case referred to, it would seem that the executor, who alone could make the deed, was dead, and that, perhaps, was the inducement to the opinion, though there seems to be some distinction taken between a defective execution of a power and a defective power, without distinguishing between powers created by law and those deriving their existence from the acts of individuals. The point determined in that case is not in this, and we will express no opinion in relation to it. The petition of the plaintiff states that there is a person in existence from whom she is entitled to a deed, and it does not appear that he has refused it. The distinction between the case under consideration and that of Frye v. Kimball, (16 Mo.) and similar cases, is obvious. It is one thing to sustain an ancient deed, on which the rights of property repose, against objections which may be urged for its overthrow, and another thing to make a deed, or pass a title [317] when the same objections are urged as reason why the deed should not be executed or the title pass in the first instance. Deeds every day are sustained against objections, which, if they had been urged as a reason why the deed should not have been executed, would have prevailed. It is maintained that the approval of the sale can not be questioned in a collateral proceeding. Had the approval been made at the term required by law, there might have been some weight in this proposition. The party affected could then have taken his appeal. But the objection here is, that the approval was made at a time when he was not in court and not required to be there ; and as the appeal must be taken at the term at which the approval was made, the party not having notice, and not being present, could not take his appeal. It was held by this court, in the case of Caldwell v. Lockridge, (9 Mo. 358,) and the principle has since been repeatedly recognized, that where an attempt is made to affect a person by a proceeding to which he was no party and of which he had no notice, and from which, therefore, he could not appeal, he may, in a collateral proceeding, treat it as a nullity. In suggesting these considerations respecting the approval, as it now stands before us for our sanction prospectively, we do not wish to be understood as expressing our opinion as to such an approval, already acted upon and consummated in a deed. As before observed, the distinction between the cases is glaring. We will not undertake to determine whether the defect in the approval may not yet be remedied by the probate court on notice to all those interested, and whether a remedy may not be had otherwise than by a proceeding in the nature of a bill in equity, which we do not think is adapted to obtain the end sought for by the plaintiff. Judge Ryland concurring, the judgment is affirmed.