23 Kan. 416 | Kan. | 1880
The opinion of the court was delivered by
This was an action of ejectment, brought by the heirs of Adam Fudge against one holding under an administrator’s deed. The first question presented is, as to the power of the court to order the sale of the land because of its homestead character. It appears that on the purchase of the land, Adam Fudge and wife executed a note and mortgage for part of the purchase-money. He moved upon the place, and occupied it as a homestead until his death, and his widow and children continued to so occupy it until dispossessed under the administrator’s deed. The note and mortgage were transferred, and the holder filed a petition in the probate court for a foreclosure. This was refused, but the amount of the note was allowed as a claim against the estate, and thereafter the administrator filed his petition for the sale of this land. This petition showed an exhaustion of all the personal property of the estate, and that this land was all the real estate belonging to it. It did not disclose that it was the homestead of Adam Fudge in his lifetime, or of his family after his death. Upon this an order of sale was made, and the laud sold to defendant. Had the probate court jurisdiction? Upon the face of the papers, it clearly had. There was nothing to disclose that the property was a homestead, and it appeared as an ordinary proceeding to subject the real estate which had belonged to the decedent to the payment of his debts — a proceeding of which the probate court had unquestioned jurisdiction. Was the order of sale a conclusive adjudication that the land was not a homestead, and not exempt from sale, and so now cutting off all inquiry as to the fact? An argument of weight could be made in support'of this. The probate court has jurisdiction to order the sale of all real estate except the homestead. Whether a piece of land is or is not a homestead, is a question of fact. Proceedings for the
Whether any other claims were properly chargeable against this land, or properly allowed against the estate, and whether the probate court ordered an improper distribution of the proceeds, is entirely immaterial. If there was one claim for which the court had jurisdiction to sell, that would sustain the sale. We shall not, therefore, stop to notice the questions discussed by counsel as to the validity of the other claims and allowances. As we have said, this homestead was subject to this mortgage, and a foreclosure could have been had in the district court. Could not the probate court likewise order a sale for this debt? We think it could. The homestead was a part of the estate of the decedent. The probate court, by
In this case, upon the filing of the petition by the administrator, the court ordered notice to be given to the heirs and all others interested, by publication in the newspaper, and such notice was duly given. A second question presented is whether, when such heirs were all residents of the county -in which the proceedings are had and the land situate, personal notice is not essential; and also whether before any order of sale is made, a guardian ad litem must not be appointed for the minor heirs. The statute (Comp. Laws 1879, p.424, §118) provides that “the court shall require notice of the petition, and of the time and place of hearing the same, to be given for such length of time and in such manner as the court may see proper.” There is no question but that the statute was complied with. The contention is, that the legislature has no power to dispense with personal notice to heirs within the county. This it will be observed is no question of propriety or policy, but simply one of legislative power. We had occasion to examine this question of notice in the case of the Gulf R. R. Co. v. Shepard, 9 Kas. 647, and we see no reason to depart from the views therein expressed. In that case we held, that where the legislature has provided for a notice by which it is reasonably probable that the party proceeded against will be apprised of what is going on against him, and an opportunity is afforded to defend, the courts have not the power to pronounce the proceeding illegal. That case was a proceeding
So far as the matter of a guardian ad litem for the minor heirs is concerned, the statute requires none, and it would be legislation to hold that one was essential. There may be wisdom in legislation providing that one should be appointed, and we believe the statutes of New York and perhaps of other states require such appointment; but that is a matter for the legislature, to consider. It has doubtless thought that the administrator and the court would sufficiently watch over and protect the' minors’ interests. So far as the order of sale is concerned, its sufficiency is settled by the case of Fleming v. Bale, ante, p. 88.
A final objection to be considered is, that the sale was made for less than three-fourths or even two-thirds of the appraisement. We must overrule this objection also. True, the statute (Comp. Laws 1879, p.425, §125) requires that there be an appraisement before any sale, public or private, is made, and it provides that no private sale shall be made for less than three-fourths the appraisement, (Comp. Laws 1879, p.425, §130,) but it places no limitation as to public sales. Whether one ought to be imposed, is for the legislature to determine. If it sees fit to authorize a sale without limits, we cannot declare a sale void which has been approved by the probate court, although the sale was for a sum far below the appraisement. We cannot thus collaterally pass upon the sufficiency of the bid, or the propriety of confirming such a sale.
Neither does the provision in the code of civil procedure concerning sales upon execution have any application. That
We see no other question in the case not already determined by decisions of this court, which requires notice.
The judgment will be affirmed.