Tutt v. Boyer

Adams, Judge, delivered the opinion of the court. The plaintiffs, as heirs at law of A. M. Tutt deceased, brought suit by ejectment against the defendant for certain lands in Henry County. The defendant claimed the lands by virtue of a sale and deed made by the public administrator of Henry County, who as such was administrator of the estate of said A. M. Tutt, the ancestor of the plaintiffs, and under an order of the County Court of Henry County for the sale of the real estate for payment of debts, sold these lands and the defendant became the purchaser. Under the instructions of the court, in effect pronouncing the administrator’s sale and deed valid, the plaintiffs took a non-suit with leave, &c., and their motion to set it aside being overruled, they excepted and have brought the case here by writ of error. The material point raised and discussed here by the plaintiffs, is that the order of sale did not comprehend the lands in dispute. But when we look at the whole record of the proceedings in the County Court concerning the administrator’s sale, we are forced to the conclusion that the lands, if not directly contained in the order, are embraced in it by necessary implication. A. M. Tutt, the ancestor, died largely indebted, and the administrator presented his petition to the County Court for the sale of his lands, and set forth a list of lands as belonging to the estate. These lands were not in that list; but in the same petition an attachment is alleged to exist on the lands in dispute, and they are referred to as being in the foregoing list — so it is evident from the petition that the administrator intended to embrace these very lands and did embrace them by reference to.the existing attachment. The order of publication was general for the sale of so much of the land of th.e deceased as would be sufficient for the payment of the debt. Then the final order of sale refers to the Order of publication as having been duly made, and .proceeds to make the order of sale, and sets forth a list of lands to be sold which does not include the land in dispute, but evidently the court intended to include them, and by reference to the [430] order of publication, &c., these lands must be considered as embraced in the order. This was the construction put upon this order by the court and the administrator. Under this order, the administrator proceeded to have these identical lands appraised for sale, and advertised them as being in the order and sold them as such and the defendant bought them as being comprehended in the order. The administrator at the next term of the court after the sale made his report of sale, setting forth the whole proceedings as required by law, and this sale and report was approved by the court and a deed ordered to be made to the purchaser. There was no objection made by any one at the time the order for sale was made, nor was the report of the administrator of his sale objected to when presented for approval. So there were two orders made in these proceedings from which the plaintiffs or any person interested might have appealed. But they have quietly rested, and seemingly acquiesced in all these proceedings, and instead of attacking them directly when it could have been done, desire now to call them in question and have them pronounced void in this ejectment. Although there is some conflict in the authorities as to what defects ought to render administrator’s sales void in collateral proceedings, the tendency of the decisions of our own court is not to view them with a very critical eye, but to maintain their validity when the directions of the statute have been substantially complied with, (Overton, et al., vs. Johnson, et al., 17 Mo., 442; Jackson vs. Magrudor decided ante, p. 53; McVey vs. McVey, ante, p. 406). In the case imder review there has been no substantial defect brought to our notice sufficient to render this sale void in a collateral proceeding. The objection to the appraiser’s oath that another person’s than Tutt’s name was inserted in the affidavit is merely technical, as they were sworn to appraise the lands to be shown to them and did in fact appraise those identical lands. The same remark may be made in regard to the advertisement, because the public administrator in the same advertise [431] ment, includes the estates of several persons, to be sold. The approval of the sale was a final judgment from which an appeal might have been taken and cannot be impeached collaterally. This judgment has the effect of curing such defects. Upon the whole record, I think the judgment was for the right party. Judgment affirmed. Judge Vories dissents. The other Judges concur.