Garner v. Tucker

| Mo. | Oct 15, 1875

Hough, Judge,

delivered the opinion of the court.

This was an action of ejectment brought by the plaintiffs, as heirs at law of John W. Cole, deceased, to recover the possession of certain lands in McDonald county. The defendant claimed title as purchaser at a sale of said lands, made in pursuance of certain orders of the probate court of McDonald county, by Daniel Harmon, the public administrator, of said county, having in charge, as such administrator, the estate of the said Cole, and by virtue of a certain deed purporting to have been made in pursuance of said sale.

The case was tried by the court without the aid of a jnry, and there was a finding and judgment for the defendant, from which plaintiffs have appealed to this court.

It appears from the record, that at. the May term of the pwobate court, in the year 1867. on the hearing of an application, regularly preferred for the sale of the land in controversy, the court sustained objections thereto, and-refused to order the same to be sold. At the November term, 1S67, and on the 4th day of said month, on what was termed an amended petition for the sale of real- estate, which was unaccompanied by any accounts, lists, inventories or appraisements, and of which no notice was given by the administrator, but to which the record shows the widow and heirs appeared by attorney, an order was made for the sale of said real estate at private sale, and the same was purchased by the defendant. This sale was on the 9th day of November, 1867, reported to and approved by the court, and the administrator was ordered to make a deed. At the July term, 1869, said administrator made a final settlement of the estate of Cole, according to law, which was duly approved. •

■ At the trial the plaintiff offered to show that in the year 1S68, Daniel Harmon ceased to be public administrator, which testimony the court refused to receive. The present suit was instituted on the 5th day of February, 1872, and tried at the February term, 1874.

At the October term, 1872, of the probate court, Harmon made another report of the sale made by him as administrator in 1867, of the lands in question, having previously given notice to the plaintiffs of his intention so todo, which report was approved by the court on the 15th day of October, 1872, and said Harmon was ordered to make a deed as administrator, to the defendant, Tucker, which lie accordingly did on the 15rh day of January, 1873. This was the only conveyance relied upon by the defendant as giving him any title to the land. From the order of the probate court made in 1872, approving the sale and ordering a deed to be made, no appeal was taken.

The question arising on the foregoing state of facts is whether the report of sale and the approval of the same by the court in October, 1872. and the deed made by Harmon, in pursuance thereof, are of any validity.

Other points are presented by appellant’s counsel, but under the previous rulings of this court they are not open for discussion.

It is strenuously insisted that the order of sale made in November, 1867, was a nullity. The mode of proceeding adopted by the administrator and sanctioned by the court was certainly irregular, but the order of the court directing the sale to be made, was not void. (Overton vs. Johnson, 17 Mo., 442" court="Mo." date_filed="1853-01-15" href="https://app.midpage.ai/document/overton-v-johnson-7998995?utm_source=webapp" opinion_id="7998995">17 Mo., 442.) No norice was given, but the record recites that the widow and heirs appeared by attorney. (Valle vs. Fleming, 19 Mo., 461.)

It is further urged that the deed is fatally defective in that it recites a sale made on the 20th of November, 1867, whereas the report shows it was made on the 8th day of November, 1867. There is nothing in this point. (Moore vs. Wingate. 53 Mo., 398" court="Mo." date_filed="1873-08-15" href="https://app.midpage.ai/document/moore-v-wingate-8004156?utm_source=webapp" opinion_id="8004156">53 Mo., 398.)

The rejection of the testimony offered to show that Harmon ceased to be public administrator in 1868, did not prejudice the plaintiff’s case. The estate of Cole continued to be in his charge until fully administered, or until he was discharged in the ordinary course of law, as other administrators. (Wagn. Stat, 122, § 12.) A small balance was found to be in the hands of the administrator at his final settlement, and there is nothing in the record to show that he was ever discharged by the probate court. Under the rule laid down in Rugle vs. Webster (55 Mo., 246" court="Mo." date_filed="1874-01-15" href="https://app.midpage.ai/document/rugle-v-webster-8004364?utm_source=webapp" opinion_id="8004364">55 Mo., 246) he still had authority to make a deed in January, 1873, provided the order of the probate court approving the sale, under which the deed was executed, was not a nullity.-

The deed offered in evidence, does not purport to have been made in pursuance of the order of approval made by the court in 1S67, and as to the effect of any deed made in pursuance of that order, if any were made and delivered, it is unnecessary to make any remarks. The deed in evidence must stand or fall with the order of approval of 1872; so that the real question is, as to the jurisdiction of the probate court, to approve in the year 1872, the sale which was made in the year 1867, a final settlement having been made by the administrator and approved by the court in the year 1869.

It has been repeatedly held by this court, that a final settlement has the force of a judgment, and is conclusive as to the matters comprehended in it, until reversed, or impeached for fraud, and on such settlement, all power of the probate court, over the accounts of the administrator ceases. In the case of McVey vs. McVey (51 Mo., 406" court="Mo." date_filed="1873-01-15" href="https://app.midpage.ai/document/mcvey-v-mcvey-8003855?utm_source=webapp" opinion_id="8003855">51 Mo., 406) to which we have been referred by the defendant’s counsel, the euratorship had not. been closed, and being still open and unsettled, the curator was held to be still competent to act. Here the case is different. For three years a final settlement had been of record, nnappealed from and undisturbed. The power of the court and of the administrator over all those affairs of the administration-which are required by statute to precede a final settlement, had alike ceased. If the probate court may, three years after final judgment, supply orders which should have been made in the progress of the administration and before the final judgment, but which were not made, it must be confessed that it has greater power in this regard than any court of general jurisdiction in the State. The approval of the sale is said to be the crowning act; without the approval, there is no sale. What authority has the court to sell the property of an intestate after final settlement, and what authority has an administrator to ask it to be sold? After final settlement and before discharge, the administrator is as to some matters still subject to the order of the probate court, and has a limited authority specially conferred by statute, but he cannot disturb any of those matters which are put to rest by his final settlement, so long as thatsettlementremains in force. Otherwise there would be no security for heirs, legatees, creditors, or even the administrator himself. Matters long settled and properly adjusted would be subject to be reviewed and overthrown, where neither fraud nor error had been committed, and we would have only confusion and change — where there should be order and repose.

The order of approval made in 1812 must therefore be held to be void, and as the deed offered in evidence consequently passed no title to the defendant, the judgment must be reversed and the cause remanded.

The other judges concur.