Harter v. Petty

BOND, J. The plaintiff is the grantee of J. H. Tucker, who acquired a sheriff’s deed to forty acres of land theretofore belonging to defendant W. T. Petty, who was the executor of the will of J. P. Ward and charged with the payment of a legacy to the said Tucker of one thousand dollars. The will of J. P. Ward was probated December 21, 1907, on which day letters testamentary issued to the executor, who omitted to give notice thereof by publication until 1909, and made his first annual settlement in May, 1909. On February 14, 1910, the probate court, on the application of the legatee, ordered the executor to pay the amount of the legacy, less a collateral inheritance tax of $50, to-wit, $950, with interest from the twenty-first of December, 1908. Due notice was given to the executor of the application for this order on Tuesday, February 1, 1910-, and a copy of the application was thereafter, to-wit, the 24th of May, 1910, served on him, on which day also an execution was issued against him and levied on forty acres of land, and the same sold and purchased by the legatee, who received a sheriff’s deed for the land and afterwards conveyed it to the plain [303] tiff, who brought the two present actions against defendant Petty and the several parties in possession. The first count of each suit is to quiet title and the second is in ejectment. The case was submitted to the court without a jury and a judgment rendered for plaintiff, from which defendant Petty has appealed. II. Judgment of probate court. No question is made as to the formal sufficiency of the sheriff’s deed to the grantor of plaintiff, nor that the plaintiff acquired whatever title passed to his vendor under that deed, contention of appellant is that the probate court was without any jurisdiction to make the order or render the judgment against the executor for the payment of the legacy bequeathed to Tucker, the grantor of the plaintiff, and hence the ulterior proceedings for its enforcement were simple nullities and carried no title to the land levied upon and sold to satisfy the judgment. Under the record in this case this position can.not be maintained. As to all matters of administration of estates and in furtherance of statutory powers devolved on them for that purpose, the orders, judgments and proceedings of the probate court are entitled to the same presumptions of regularity and validity, when assailed collaterally, that exists when a similar attack is made upon the judgment of courts of general 'jurisdiction which proceed according to the course of the common law. This principle, despite some vacillation in the earlier cases, is now the accepted law of this State. [Wilson v. Wilson, 255 Mo. l. c. 537, and cases cited.] The judgments and proceedings of a court entitled to these presumptions will be upheld against collateral attack unless it affirmatively appears in some portion of the entire record that the steps necessary to the acquisition of jurisdic [304] tion were not taken. The mere silence of the record is not sufficient to overcome the presumption that the given judgment was rendered after jurisdiction had attached. Taking the face of the record of all the proceedings which culminated in the judgment against the executor, there will be found nothing to prove that the probate court was without jurisdiction to render it. The defendant executor, though duly notified of the ■demand for judgment and the grounds therefor (R. S. 1909, secs. 244; 245, 246, 233, 235), made no appearance and judgment was rendered against him. In the absence of any contrary showing in any part of the record we must presume that this order was only made after a finding by the court of the grounds upon which it was asked. These in substance were, that a legacy of one thousand dollars- was given to the legatee in the will whereof the defendant was executor; that there was money in the hands of the executor amounting to $8751 left after the full payment of all the debts and other legacies as shown by this settlement, and that more than two years had elapsed since the granting of letters. Assuming that evidence of these allegations was adduced it cannot be said in view of the statutes cited above, that the probate court was without jurisdiction to make the order of payment and award execution thereon against defendant. III. Belated Notice of Administration. But appellant further contends that, since he failed to publish, as required by- law, the facts of the issuance of letters of administration to him, therefore the legatee had no . , , , -, -, , , right to demand payment until two years after the belated publication of such notice, which was about a year and a half after the grant of the letters. [305] This defence is not available under the present record. It was the personal misfeasance of the executor that the statute requiring such publication within thirty days was not complied with. He cannot for that reason set up his own violation of duty as a defense to a cause of action which would have accrued to the legatee within the time his demand for payment was made, if the executor had obeyed the mandatory statute. [R. S. 1909, sec. 82.] If the executor has the1 power to postpone the demand for legacies until such publication of notice of letters and should refuse to make publication, then it necessarily follows that his misconduct would not only prejudice the rights of legatees, but would contravene the statutory purpose to effect a speedy closure of the administration of estates. [Laws 1911, pp. 81-6.] His action in the present instance was unmoral if not in bad faith, and was no bar to the demand of the legatees for payment which was filed within the term of the statute then in force, permitting the demand for legacies after two years from the date of letters upon executing a bond, which latter requirement was waived by his non-appearance to this suit for the legacy. [R. S. 1909, secs. 244, 245; Pound v. Cassity, 166 Mo. l. c. 428.] IY. interest on It is finally urged by appellant that he should not be charged with interest from one year after the grant of letters, but only from the date 0f the demand for the legacy and after refusal to pay. The judgment embracing this item of interest was an appealable one, and if erroneous in that respect the executor could have had redress on appeal. [R. S. 1909, sec. 289.] The probate court was possessed of jurisdiction to pass on the demand for interest, and even if it [306] erroneously exercised that jurisdiction in allowing too much interest, its judicial action cannot be questioned in the collateral attack made by appellant. Nothing can be further apart than an utter absence of jurisdiction to decide a case, and a mere mistake of law and facts made in the decision of the case of which a court has lawful jurisdiction. [Rivard v. Railroad, 257 Mo. l. c. 167.] A misapprehension of these diverse functions has created some confusion and lack of clarity in the decisions of some courts. No error however gross, occurring in the exercise of the rightful power to decide a ease, can become the basis of a collateral attack upon the judgment. Such imperfections of judicial action cam only be remedied by a review on appeal, or writ of error, or other mode of direct attack. Our conclusion is that the judgment of the probate court upon which the sheriff’s deed was founded is impregnable to the collateral attack made in the record before us. It is therefore affirmed. All concur.