89 P. 666 | Kan. | 1907
The opinion of the court was delivered by
This was a suit to enjoin the delivery of a deed executed by Ethel Lake, as executrix of the estate of Joseph Hathaway, deceased, and to
The proceeding was brought by the three, sons of the deceased, Mark, Orin, and Edward, and in their petition they alleged that their father died owning real estate in Iowa and Kansas, as well as some personal property. They set forth a will by which the real property in Mills county, Iowa, and Chase county, Kansas, together with some personalty, was given to the three sons, and land in Chautauqua county, Kansas, was devised to Ethel Lake, who was the only daughter of the deceased. In it was the provision that, “there, being some encumbrance on the land in both counties last above mentioned, it is my desire that the lands in Chase county be sold and the encumbrance on the Mills county farm be paid, and the remainder of the proceeds of said land be equally divided between Mark, Orin, and Edward.”
It was further alleged that the will was probated in Chautauqua county, where Joseph Hathaway died, and that after filing a certified copy of the will in Chase county, Kansas, the executrix applied to the probate court of that county for permission to sell the Chase county land for the payment of debts, as provided for in the will, and that on December 5, 1904, an order authorizing the sale was made. It was also alleged that before the sale, and on January 23, 1905, Ethel Lake went to Iowa and entered into a contract with her brothers making provisions for the payment of the debts so that a sale of any of the real property devised would be unnecessary, and stipulating that the proceedings • instituted in the probate court of Chase county for the sale of the land should be dismissed, but that in violation of the contract she sold the land to Clarence North, who was made a defendant in this case.
In her answer Ethel Lake alleged that a sale of the
In his answer and cross-petition Clarence North, the purchaser of the land, set forth the proceedings of the probate court ordering the sale, including the notice of sale and appraisement of the property, and averred that he purchased the land for $7500; that the sale was duly confirmed and the deed ordered; that a deed was executed and placed in the custody of T. W. Hafer, who received the deed for him; and that he tendered the full amount of the purchase-price of the land, but, at the instance and request of the plaintiffs, Hafer had not delivered the deed. He further averred that he purchased the land in good faith, without any notice or knowledge of the contract pleaded by the plaintiffs, and that the existence of that writing was not known to him until after the confirmation of the sale. He also alleged the invalidity of the contract signed by the executrix.
A trial resulted in a judgment setting aside the proceedings of the probate court relating to the sale of the land, canceling the deed of the executrix, holding the contract between Ethel Lake' and her brothers to be valid, and quieting the title to the Chase county land in the plaintiffs. The defendants prosecute this proceeding in error.
This suit is a collateral attack on proceedings in, and the decision of, a court of record. The probate court of Chase county has jurisdiction of the estates of deceased persons. Its jurisdiction was duly invoked by the petition of the executrix, about whose appointment there is no question. Notice of the hearing was required to be given by publication, and that notice was brought to the personal attention of the plaintiffs. Based.upon these notices, the hearing was
The order of confirmation is a final judgment, and in the absence of an appeal is as conclusive upon the rights of the parties, including the plaintiffs herein, as could be any adjudication by a court of competent jurisdiction. (Watson v. Tromble, 38 Neb. 450, 50 N. W. 331, 29 Am. St. Rep. 492, and note.) The order of confirmation not having been appealed from, it absolutely fixed the rights and liabilities of North as a purchaser. Of course it would not validate a void sale, as where there was no jurisdiction in the court to order it, but unless the order is void it is not open to collateral attack. If there had been fraud, mistake, or other like ground for which a court of equity would avoid a sale made by one person to another, the plaintiffs would have had a reason for asking equitable relief, but so far as the record shows North was an innocent purchaser.
The misconduct of the executrix is the principal ground alleged for overthrowing the sale. The plaintiffs, although they had abundant notice, allowed the sale to be confirmed and the deed to the purchaser to be approved by the court before making any protest or
It is argued that the court was without power to order a sale because the land was absolutely devised to the plaintiffs. “Under our statutes, the whole property of the decedent, not exempt, both real and personal, is charged with the payment of debts.” (McNutt v. McComb, 61 Kan. 25, 27, 58 Pac. 965.)
As each heir took the share devised subject to the •debts of the testator, we need not inquire whether the clause in the will providing for the sale of this land for the payment of indebtedness was precatory or imperative. It is conceded that there was a large in
Nothing stated in plaintiffs’ petition or produced as evidence afforded any ground for invalidating the sale made to North or interrupting the delivery of the deed to him. The judgment is therefore reversed, and the cause remanded for further proceedings in accordance with the views expressed herein.