Jones v. Manly
58 Mo. 559
Mo.
1875
Check Treatment
Sherwood, Judge,

delivered the opinion of the court.

Ejectment for land in Cedar county. The plaintiffs, who are the minor heirs of Ferdinand C. Jones, deceased, sue by *563their guardian, Lydia Jones, the widow and relict of the decedent, who died seized аnd possessed of the land in controversy, and was indebted also in a considerable sum. In Consequence of such indebtedness the land was sold at administrator’s sale, at which defendant, Thomas Jones, became ■the purchaser, paid the purchase money, and received a deed from the administrator on the 13th day of March, 1867.

The answer of the defendant, Manly, the tenant of defendant Jones, was a general denial; that of Jones himself wTas a general ‍​​‌​​​​​​​‌​​‌​​‌‌‌‌‌‌​‌​‌​‌​​‌​‌​​‌‌​​​‌​‌​​‌​‌‍denial, and also contained an equitable defense, similar to that set up in Valle’s Heirs vs. Fleming’s Heirs, (29 Mo., 152.) This equitable defense was stricken out on motion, and in this there Was error.

The doctrine, asserted in the case just cited, may well be regarded as settled in this court, and has in a recent сase (Shroyer vs. Nickell, 55 Mo., 264) received our entire and cordial approval; and there is nothing in this case to distinguish ‍​​‌​​​​​​​‌​​‌​​‌‌‌‌‌‌​‌​‌​‌​​‌​‌​​‌‌​​​‌​‌​​‌​‌‍it in point of principle from that of Valle’s Heirs vs. Fleming’s Heirs, supra, as it is wholly immaterial whether the lien on the real estate of the decedent' be created during his life time by dеed or by the operation of the statute, which creates an incumbrance on the land of the deceased to seeirre.tlie creditors of the estate. And the motion to strike out the equitable defense, as well as the action of the court thereon, having beеn preserved in the bill of exceptions, it occupied the same footing as a demurrеr, and there was no manner of necessity for referring to it in the motion ■for a new trial. (Batesоn vs. Clark, 37 Mo., 31; State vs. Matson, 38 Mo., 489; Brady vs. Connelly, 52 Mo., 19; Tower vs. Moore, Id., 118.)

On the theory on which this cause was tried in the court below, there was no error in admitting evidеnce touching waste, as the statute respecting actions of ejectment annexеs a recovery for waste and injury as. incidental to a judgment in favor'of plaintiffs. (Wagn. Stat., 560, § 13; Leе vs. Bowman, 55 Mo., 400.)

*564As the mansion house of the deceased was on the premises in question, and as the dower of the widow had not been assigned, she had such a possessory right as would defeat аn action ‍​​‌​​​​​​​‌​​‌​​‌‌‌‌‌‌​‌​‌​‌​​‌​‌​​‌‌​​​‌​‌​​‌​‌‍of ejectment, and this right was capable of assignment^ and when assigned carried with it all the incidents belonging to it prior to its transfer. (Stokes vs. McAllister, 2 Mo., 163; Kane vs. McCowan, 55 Mo., 181; Wagn. Stat., 542, §§ 21, 22.) The exclusion, therefоre, of the deed of the widow to the defendant, Jones, was erroneous. And there was also error in excluding the deed of the administrator. This deed contained all the usual and statutory rеcitals in regular order, and was made at the proper term.

I attach no importance to the fact that the deed recites that the sale took place on the 4th day of January, 1867, and the appraisement on the 2d day of March next thereafter, becаuse the deed expressly recites that the appraisement occurred prior to the sale. It may, in consequence, well be assumed that the date referred to was a mеre clerical mistake.

Regularly, the approval by the court of the report of sale by the administrator ought perhaps to be entered of record. But it does not necessarily follow, that if no formal entry is found reciting this, that therefore the sale is void and liable to оverthrow in a collateral proceeding. For aught that appears in the bill of exсeptions to the contrary, the report of the administrator is among the files of the Cedar Probate Court, with the approval of the judge and the date of such ‍​​‌​​​​​​​‌​​‌​​‌‌‌‌‌‌​‌​‌​‌​​‌​‌​​‌‌​​​‌​‌​​‌​‌‍approval indorsed thereon. But one thing is quite clear, although the plaintiffs in their researches for record entries failed to find any expressly approving the sale, yet it rvas asr certained that thе records did show this, that on the very day the deed was made the administrator appeared, and on his 'application and representation that an error had occurred in thе description of one forty of the land sold, that the court ordered the error in description to be corrected.

Besides this, the deed contained all the recitals requisite in such cases, was aclcnoAvledged before the probate judge himself, who was ex offieio clerk, in open court. Under such *565circumstаnces it would be going a great way to hold that the sale had not been approved, by the court.

It is the policy of the law to uphold judicial sales, and to look with leniency on minоr irregularities, which do not affect ‍​​‌​​​​​​​‌​​‌​​‌‌‌‌‌‌​‌​‌​‌​​‌​‌​​‌‌​​​‌​‌​​‌​‌‍nor prevent a substantial compliance with those formalities which it is always best and safest to strictly observe.

Holding these views, the judgment must be reversed and. the cause remanded.

Judge Vories did not sit; the other judges concur.