23 Kan. 411 | Kan. | 1880
The opinion of'the court was delivered by
This was an action in the nature of ejectment, brought by the heirs of Franklin Brady, deceased, to' recover certain lands which had formerly belonged to Brady, but which had subsequently been sold and conveyed by Brady’s administrator to the present defendants. The defendants have been in possession of a portion of the land since 1871, under an administrator’s deed, recorded August 24, 1871, and of the other portion thereof since 1872, under another administrator’s deed, recorded August 19,1872. The plaintiffs claim that said sale and conveyance are void for various reasons, which we shall now proceed to consider.
I. The plaintiffs claim that the appointment of said administrator was void, and they urge several reasons therefor, none of which, however, are sufficient, and none of which require any consideration in detail. That Brady was an inhabitant of Allen county, and died intestate, leaving an estate to be settled, are undisputed facts, and these facts are sufficient to give the probate court of Allen county jurisdiction to make the appointment. Whether the probate court adopted the right procedure or not in ascertaining these facts, or in making the appointment, or whether the court appointed the right person or not, are wholly immaterial questions in this controversy. These questions cannot be raised in the collateral manner in which the plaintiffs now seek to raise them. (Taylor v. Hosick, 13 Kas. 518.) The statute does not anywhere prescribe how the jurisdictional facts shall be ascertained; hence the probate court may ascertain them as best it can; and if it ascertain them correctly, that is all that is required. All that is really necessary is, that the jurisdictional facts shall exist as facts; and how the court ascertains them is wholly immaterial. And when the court ascertains these
II. The notice given by the administrator of the sale of said land closes as follows: “ The said lands are offered for sale, in pursuance of an order of sale of the probate court of said county, the same being necessary to pay the debts of said estate. Terms made known on day of sale.” Whether the terms of sale were in fact made known on the day of sale or not, is not shown, but probably they were; and the property seems to have sold at a fair price, and for cash. At least, no one complained of the sale, and it was confirmed by the probate court. The only objection to the above notice is, that it does not state the terms of the sale. This was an irregularity, (Comp. Laws of 1879, p. 425, §129,) but we do not think that the sale should be held to be absolutely void on account thereof. If any harm resulted therefrom, the party injured should have resisted the confirmation of the sale, and should have moved to set aside the sale, or should have commenced some proceeding whereby equity could have been done to the purchaser, who paid his money in good faith, as well as to the other party. Probably, however, no harm was done by this irregularity, and no court of equity would have set the sale aside.
III. The plaintiffs claim that thé administrator’s deed was and is void, and this claim is made upon the ground that the administrator in drawing the deed used the words “ probate judge” in every instance, where he should have used the words “probate court.” Is this mistake of the administrator fatal? As before stated, the probate court in Kansas consists of one single judge alone, and this judge is the probate judge. The probate judge, whether acting as a judge or as a court, is his own clerk, and has no sheriff, bailiff or other
There were two administrator’s deeds in the present case, one of which was executed August 22, 1871, and the other was executed August 19, 1872. All the proceedings mentioned in the second deed were had after said law of 1872 took effect, and the proceedings mentioned in the other deed, before. With regard to the settlement of decedents’ estates, and in probate matters, the phrases “probate judge” and “probate court” are nearly synonymous; the probate judge is nearly always the probate court, and the probate court is always the probate judge. There are very few cases in the settlement of decedents’ estates where the probate judge can act merely as a probate judge. In nearly all cases he must act as a court. The plaintiffs have not pointed out a single instance where the probate judge can act in the settlement of decedents’ estates, or in probate matters as merely a probate judge. From the foregoing, it will be seen that it would be almost impossible that any person could be misled by the