13 Mo. 553 | Mo. | 1850
From the above statement, the single question before this court involves the propriety of the order of the Circuit Court, directing the proceeds of the sale of the property by the sheriff' to be paid over to Darby, the administrator. Tlie commissioners reported that the land was not susceptible of partition without loss to the owners. A sale was ordered and made ; and before report of such sale by the sheriff, Darby ¿moved tlio court to have tlie money coming to tlie heirs of Langham, that is one-tenth of the amount of the sale, paid over to him, for tlie benefit of Langham’s creditors, he having satisfied the court by proof that Langham’s estate was largely indebted beyond the share of the proceeds of said sale coming to it.
The heirs of Langham object to Darby’s being permitted to appear in this proceeding. But, under our law the heirs of Langham must give way to his creditors. Darby represents them in this business ; ho adopts tlie sale of real-estate thus made, and by his act sanctions it. I am not willing to force Darby to proceed to have this land sold over. It is better for all parties interested really to abide by tlie present sale. The heirs of Langham, under the facts in proof, have but a nominal interest, and although Darby might have been more formally introduced upon the record in this case, yet I am unwilling to disturb the order of the court, directing the amount coming to Langham’s heirs to be paid to him as the administrator of-said Langham. I overlook all formalities, and where complete justice can be done in the premises by motion, and by the adopting of the partition sale by the administrator, I see nothing to be gained by directing a different proceeding. As to the want of notice, Langham’s heirs were in court and did not need notice of Darby’s motion ; they knew it as soon as it was made.(
(a) See 2 Wag. Stat. p. 972, § 39; Metcalf v. Smith, 40 Mo. R. 576.