Blickensderffer v. Hanna

GANTT, P. J. This is an appeal from a decree of tbe circuit court of Laclede county, determining tbe title to two hundred acres of land in Laclede county, to-wit, the northeast quarter and tbe northwest quar — 102 — ter of the southeast quarter, all of section 25, township 34, range 15, to be in the plaintiff. The defendants are the devisees of Lewis Keedy, who died in said county in 1868, leaving a last will, which was duly probated. By his will he gave the land -in suit to Caroline E. Morelock for her natural life and at her death to her offspring. Mrs. Polly Keedy, the testator’s widow, died in 1870. Mrs. Morelock, after the execution of the will, but before her father’s death, intermarried with J. P. Hanna. Of this marriage three children, Mrs. Christina Burch, Mrs. Mazie Bradley and Farmer G-. Hanna, were born, and survived their mother, Mrs. Hanna, who died January 9, 1901, and they assert title to said land under the will of their grandfather, Lewis Keedy.. Plaintiff claims title under an administrator’s sale of said land, made in 1875, under an order of the probate court. By this appeal the validity of the probate proceedings under which the lands were- sold and conveyed to plaintiff, are brought in question. The bid of the plaintiff for the two hundred acres was $190. Subsequently some question arose as to the interest which Mrs. Morelock (afterwards Mrs. Hanna), took under the will, and plaintiff paid her $536, for a quitclaim deed to the land. The contention of the defendants is that the administrator’s sale and deed were and are void for the following reasons: First, because there were no unpaid debts of the testator for which said lands could be sold; second, the order of publication required the notice' to the heirs to' be published in the Lebanon Journal, but it was published in the Lebanon Chronicle; third, the order required a private sale, but it was sold at a public sale, without a previous order for a public sale. These propositions will be considered in their order, in the light of the record. — 103 — I. The administrator’s deed recites that on July 12, 1875, at its July term, 1875-, the probate court of Laclede county, by its entry ordered said administrator to sell the land in controversy to pay'off and discharge the debts of the testator, Lewis Keedy, at public sale, for cash in hand; that previous to the day of sale, said administrator caused a notice that said real estate would be sold at public sale on October 11, 1875, at the courthouse door in Lebanon, for cash in hand, to be published in the Lebanon Chronicle, a newspaper published in said county, for four weeks, and also caused a copy of such notice to be put up in ten public places in said county twenty days before said, sale; that he caused said real estate to be duly appraised by three householders (naming them), who appraised the same at $300 and so certified under their oaths; that at said sale Eobert Blickensdarffer was the highest and best bidder for $190, and the same was stricken off to him, and that at the nest term said administrator made report of his proceedings to the probate court, which by its order of record approved the same, and in pursuance of the premises and the payment of the said sum he conveyed the said land to said purchaser. To impeach and avoid said deed, defendants offered and read in evidence the inventory consisting of a long list of horses, cattle, hogs, farm implements and household goods; also notes and accounts to the amount of $317.03. Defendants also read in evidence the appraisement of the said personal estate amounting to $803.85. Defendants also read the record of allowances against said estate, consisting of one for $25 in favor of John W. Wilkinson, in the first class; one in favor of the administrator of Keedy, Givens & Co., Alfred Case, Admr., for $54.30, fifth class; one in favor of H. F. Johnson, for $13; one in favor of S. W. Barnes, fifth class, for $5.30; -one for $4.60 in favor of Mary Davis, and one in favor of Fy. Jones, administrator of Wm. Jones, for $35. — 104 — Defendants also read in evidence vouchers for payments of the allowances to Wilkinson, to Johnson,, and receipts for printer’s fees and probate costs'. Defendants also read in evidence the first, second and third annual settlements of Wm. Jones, the executor of said estate. The first settlement showed a balance due the estate of $895.21; the second, a balance of $882.21,. and the third a balance of $169'.14 due the executor. Defendants also read in evidence an order of the probate court of April 10-, 1872, directing the executor to deliver the personal property inventoried to J. P. Hanna and take his receipt for $80:3.85, which he did, and his voucher therefor was filed in the third annual settlement. It appears that the executor (Jones) died, and one McElvain was appointed administrator de bonis non, in 1873. He was afterwards removed and the estate was ordered into the hands of N. D. Atchley, public administrator, who afterwards filed the petition for' the sale of the lands and made said sale and deed. The petition alleged that there were debts unpaid; that no personal property had come into the hands of the administrator belonging to said estate; that there was no property except real estate; that it was necessary to sell said real estate or a part thereof to pay said debts, and set out a description of the lands, and prayed for an order of sale. The court made the order of publication on April 14, 1875, requiring the same to be made in the Lebanon “Journal,” and on July 12,1875, made the order of sale. In support of their contention that there were no unpaid debts for which the lands could be sold, defendants introduced J. P. Hanna, who testified that he paid the Keedy, Givens & Co. allowance of $54.30, at least “that was his recollection.” He "also testified that he paid the $35 allowance to Jones. He testified that Mr. Wallace, attorney for plaintiff, knew that he, Hanna, had paid all these claims against Keedy’s estate. — 105 — On the other hand, the prohate court found there were debts of the estate unpaid, and that there was no personal estate to pay the same, and Mr. Case, the administrator of Keedy, Givens & Co., testified J. P. Hanna did not pay said allowance; that it was paid by Mr. Wallace, as attorney for the public administrator, Atchley, out of the proceeds of the sale of the lands. Mr. Wallace denied that he knew the claims were all paid. We think the contention that there were no unpaid debts when the order of sale and the sale were made is unsupported by the record. Neither the testimony of J. P. Hanna that he paid the debts, to the best of his recollection, nor the ex parte order reciting the debt had been paid, was conclusive upon the probate court. That evidence was directly contradicted by Case, the administrator of Keedy, Givens & Co., and there was no voucher therefor. The probate court was possessed of jurisdiction to determine that fact and its adjudication is not open to collateral attack in this collateral proceeding. Defendants could have appealed from that judgment if dissatisfied with it. It is insisted also that the order of sale was void for the reason that the record of the probate court in this particular estate showed that there was sufficient personal estate to pay the unpaid debts, to-wit, the claim of the estate against the bondsmen of Wm. Jones, the executor, who had paid over to J. P. Hanna $803.25 under the order of the probate court, and also against said Hanna. Learned counsel for defendants concede that the judgments of probate courts in this state in causes within their jurisdiction are entitled to all the pre-' sumptions of a court of general jurisdiction and are not subject to collateral attack, but insist that, like courts of general jurisdiction, they may be attacked collaterally by their own records of equal dignity, showing they had no jurisdiction in the given cause. Counsel admit that the finding of the probate court — 106 — that there was no personal estate m the hands of the administrator sufficient to pay the debts due and owing by the estate cannot be impeached collaterally in this proceeding except by the record and files of the probate court, but insist this was done by the record showing the court had ordered the executor (Jones) to deliver the personal estate amounting to $800' to J. P. Hanna, without bond to refund for the benefit of creditors. Counsel insist that the finding of the probate court “that the personal estate of the deceased, in the hands of the said administrator, is not. sufficient to pay the debts due and owing by the said estate,” is equivocal and falls short of the requirement of the statute; that before real estate can be sold for the payment of the debts of a deceased person, it must appear that his personal estate shall be msufficient to pay his debts and legacies. [Wagner’s Statutes 1872, art. 3, sec. 10.] Was the order of sale void and unauthorized lie-cause the record showed that the estate consisted, in part, at the death of the testator, of personal property to the amount of $800 which would have been amply sufficient to have paid all the debts of the estate, but this personalty was turned over to J. P. Hanna, as representative of his wife, the then sole devisee of said estate, by order of the probate court? Hanna was the husband of the only daughter of the testator and by the will this personal property was bequeathed to the widow of the testator, who died in 1870. When this order was made the creditors whose claims were unpaid were not in court, but it was represented to the court' all the debts had been paid by J. P. Hanna. The question is, were the creditors compelled to sue Hanna, or the bondsmen of Jones, the executor who had died, for this $800, before they could resort to the real estate? We think not. We think the principle was properly ruled in Wan Bibber v. Julian, 81 Mo. l. c. 625, wherein on a like contention this court said it — 107 — would not require a creditor, “to resort to a suit on the bond of the administrator, with the trouble, expense and delay incident thereto,” before proceeding for an order for a sale of real estate. While the statute wisely requires the personal estate to be applied first to the payment of debts of the deceased, a creditor should not be relegated to an action on the bond for waste or misappropriation for which he is in no way responsible, and in this case the representative of the heir seems to have brought about the condition of which his children now complain. But independent of this consideration, if the' notice to the heirs and devisees was sufficient to give jurisdiction, which we will consider later, if they desired to contest the finding that there was no personal estate, and were dissatisfied with the order of sale, they should have appealed from the order and cannot assail it .in this collateral way. [Wolf v. Robinson, 20 Mo. 459; Grayson v. Weddle, 63 Mo. l. c. 536; Melton v. Fitch, 125 Mo. 281.] . II. Was the notice to the heirs and devisees void because the court ordered it published in the Lebanon “Journal” but it was in fact published in the “Chr'onicle” newspaper? The statute governing the proceeding was section 25 of article 3 of Wagner’s Statutes 1872 (then in force), and was as follows: “Section 25. AYhen such petition, and such accounts, lists and inventories shall be filed, the court shall order that all persons interested in the estate be notified thereof and that unless the contrary be shown, on the first day of the next term of the court, an order will be made for the sale of the whole, or so much of said real estate as will pay the debts of the deceased. Such notice shall be published for four weeks in some newspaper in the county in which the proceedings are had, or by ten handbills, to be put up at ten public places in said county, at least twenty days before the term of the court at which any such order will be made, in the discretion — 108 — of the court.” The notice in this case was published in a newspaper published in the county, for four weeks, to-wit, the Chronicle, but not in the Journal, the paper designated by the court, and the court so found before it made the order of sale. It will be observed that the statute does not require the court to designate the newspaper in which the order shall be published. The statute in this respect is unlike the statute g'overning orders of publication in actions under the Civil Code, section 581, Revised Statutes 1899, which provides the notice shall be published in the newspaper, that the plaintiff or his attorney “with the approval of the judge or clerk making the order, may designate as most likely to give notice to the person to be notified.” This section has been construed and it has been held that a failure to designate in the order the paper, with the approval of the judge, or clerk, if in vacation, was fatal to the jurisdiction of the court. [Otis v. Epperson, 88 Mo. 131.] ‘Whereas under the practice of the Act of 1855, the failure of the clerk to designate the particular.newspaper in which the notice should be published, although an error, was held not to be such an one as would destroy the judgment in a collateral proceeding. [Kane v. McCown, 55 Mo. l. c. 195-6.] An order of publication under our statute law is substituted process. It is the means resorted to of giving the defendant notice in cases where the ordinary process of law, the service of a writ of summons personally upon a defendant, cannot be made. Being only constructive notice, it has been uniformly ruled that a strict compliance with the statute must be observed to give the court jurisdiction. In this case the statute required the notice to be “published for four weeks in some newspaper in the county in which the proceedings are had, ” etc. This was done. The law did not require the court to designate the newspaper, but — 109 — it did. The failure to obey tbe order of tbe court in this non-essential particular was at most but an error of irregularity. The fact appeared to the court and it accepted the publication as sufficient. There is such a marked difference between the requirement of the Administration statute and that governing practice under the Civil Code that the decision in Otis v. Epperson, 88 Mo. 131, cannot be held to apply, and if the order of publication in Kane v. McCown, 55 Mo. l. c. 195, was not void, even under the Civil Code, a fortiori, the publication in this case cannot be held void in this collateral proceeding. It was not mandatory upon the court to designate any particular paper. In this connection our attention is directed by defendant’s counsel to State ex rel. v. Baldwin, 109 Mo. App. 573. We think the language of the Local Option statute is materially different from the Administration statute under review, and that fact calls for a different construction, without impinging upon the authority of that case or the opinion in State ex rel. v. Reid, 134 Mo. App. 582. The publication met the requirements of the statute, and the mere fact that it was not published in the paper designated, but was published as the law itself required, cannot be held to have deprived the cburt of jurisdiction to make the order, especially as the court accepted it as a compliance with its order. III. It is next urged that the sale was void because the court directed a private sale, whereas the administrator de. bonis sold it at public sale after having advertised it for sale in the newspaper and by handbills. This sale was duly approved, but it is insisted that as the sale was void, the approval was incapable of rendering it valid. On this point, it must be constantly kept in view that this was a judicial sale, and the principles governing that character of sale must govern. It is familiar law that, in a judicial — 110 — sale, the court ordering and approving the sale is regarded as the contracting party on one side, and the bidder on the other. In Anderson v. Scotton, 2 Bland’s Ch. 643, it was held that if a trustee directed to sell at public sale does notwithstanding sell at private sale, the sale will be confirmed, if satisfactory reasons are given for so doing and no objection is made. This was said in a direct appeal, but the rule is much stronger when such an approval is assailed collaterally, as in this case. Moreover, with us the public •sale is deemed the fairest, and where, as here, the order was for private sale and the sale was public and fully reported to the court and approved, we can no longer doubt that the court had jurisdiction to approve and confirm it, and its judgment is not open to this collateral attack. ' The administrator is regarded as the officer or agent of the court in making the sale. In Cunningham v. Schley, 6 Gill (Md.), l. c. 229, on this point, it was said: “If, for reasons deemed sufficient by the court, the agent departs from the form in which he is to exercise his authority, who could have a right, merely upon the ground of such departure, to say that the principal should not ratify the act of his agent?” Again and again this court has held sales of real estate under orders of the probate courts to be judicial sales, and the confirmation of such sales by the probate court is the crowning act and cures all prior irregularities, provided of course, always, that the court had obtained jurisdiction of the subject-matter and over the parties. [Robbins v. Boulware, 190 Mo. 33; Noland v. Barrett, 122 Mo. 181-189; Melton v. Fitch, 125 Mo. 281.] Having carefully considered each assignment of error, we are of opinion that they are neither singly, nor collectively, sufficient to render the administration sale and deed void, and for the reasons given the — 111 — judgment of the circuit court is affirmed. Burgess, J., concurs; Kennish, J., not having been a member of tbe court when the cause was argued, takes no part in the decision.