122 Mo. 181 | Mo. | 1894
This is an action of ejectment by the widow and heirs at law of William H. Twyman, late of Jackson county, against William T. Barrett, the tenant of Mrs. Catherine E. Donnell, and Mrs. Donnell, and her husband, for two hundred and three acres of land in Jackson county, to wit: East half of the southwest quarter, and west half of southwest quarter, except fifty acres off of the north end of the last mentioned tract, all in section 7, township 49, range 32, west; and all the land east of the- Big Blue river in the east half of section 12 in township number 33, containing fifty acres; and the southwest quarter of section 7, township 49, range 32, and ten acres off the north side of the southwest quarter of section 7, township 49, range 32, .containing in all two hundred and three acres. The ouster was laid March 1, 1888.
The answer is a general denial, and a plea of the statute of limitations as to one hundred acres of the land, and an averment of title to all of the land in Mrs. Donnell. The verdict and judgment was for the defendants in the court below, and since this appeal the plaintiffs have abandoned in this court any claim to one hundred acres, being all the land east of the Big Blue river in section 12, township 49, range 33, and fifty acres off the north end of the west half of the southwest quarter of section 7, township 49, range 32.
The defendants, to maintain their defense, proved the following facts:
First. That soon after the death of William H. Twyman, deceased, and on March 25, 1874, one Jesse Noland was duly appointed as the administrator of his estate, and, as such, sold for the payment'of debts, to said defendant Mack S. C. Donnell, on June 8, 1874, one hundred acres of said land, being the same one hundred acres described in the answer herein, and there claimed by defendant under the ten years’ limitation.
Second. That upon the acceptance of the resignation of said Noland as such administrator, axid on November 16, 1878, Milton Moore, then public administrator of Jackson county, was ordered to, and did, take charge of said estate, as the administrator de ■bonis non thereof.
Third. That on August 11, 1880, said Milton Moore, as such administrator de bonis non, filed in the probate court, his petition, “for the sale of the whole of the real estate and of the personal estate with its ■appraised value,” and that an order of publication was then duly entered thereupon.
Fourth. That at the next term and on November 13, 1880, upon proof of publication, said probate court ■ordered a sale of said real estate, “at public or private sale,” and if the former, then the court “further orders that said administrator give notice of the time, terms and place of sale as by law required,” etc.
Fifth. That under the order of sale made at said
On May 14, 1881, said administrator made his administrator’s deed to said McMahon, in which said appraisement is recited as made on August 9, 1880, and that “said sale was adjourned from February 14 to February 19, owing to the inclemency of the weather and impassable condition of the roads and want of bidders.”
It was shown aliunde the report and deed, .that, on Saturday, Mrs. Twyman, Mr. Hale, her father, and
Plaintiffs seek to recover on two grounds. They maintain the sale by the administrator, Moore, and his deed are void. First. Because the appraisement was made before, and not after the order of sale. Second. The sale was void because the administrator adjourned and continued it from February 14 to February 19, 1881.
The sale of the real estate by an executor or administrator without having it appraised is an irregularity for which the sale may be set aside in a direct proceeding for that purpose, but it is not on this account absolutely void in a collateral proceeding, after confirmation by the probate court. 2 Woerner’s Amer. Law of Admin
If a sale is not to be treated as wholly void in a collateral proceeding where no appraisement at all is had, a fortiori a sale is not to be held void when a perfectly fair appraisement, contemporaneous with the filing of the petition for sale, is made, but before the order of the sale. The statute commands an appraisement but it is silent when that appraisement shall be made. This appraisement was made two days before the petition for sale was filed. In this manner not only was the court furnished with a guide for its approval or disapproval, but it was enabled in the first instance to determine how much and what part of the estate should be sold. While it is believed the general practice in this state has been to cause an appraisement to be made after the order of sale, we are not prepared to declare that an appraisement made at the time of filing the petition would be irregular, but we have no hesitancy in saying it will not render the sale void. Clearly not, after its approval by the probate court, under whose orders and direction it was done. Irregularities in the appraisement have not heretofore been considered by this court sufficient to invalidate the sale of an administrator or curator. Moore v. Wingate, 53 Mo. 398; Johnson v. Beazley, 65 Mo. 250; McVey v. McVey, 51 Mo. 406; Bobb v. Barnum, 59 Mo. 394.
But, even if the appraisement be conceded to be irregular, 'the subsequent confirmation of the report, in which that appraisement was specifically called to the attention of the probate court and of all parties interested in said lands, cured the irregularity. The order of approval was a final judgment from which an appeal could have been taken and was the judgment of a court having jurisdiction of the cause and over the parties, and is entitled in this collateral proceeding to "the same
An administrator’s sale of real estate, under the orders of a probate court, in those states which require such sales to be reported to the court for its approval or rejection is a judicial sale. Halleck v. Guy, 9 Cal. 181; Mason v. Osgood, 64 N. C. 467; Vandever v. Baker, 13 Pa. St. 121; Lynch v. Baxter, 4 Tex. 431; Worthington v. McRoberts, 9 Ala. 297; Grignon’s Lessee v. Astor, 2 How. (U. S.) 319. The law requiring such sales to receive the approbation of the court before it shall be binding or valid to pass the title, in effect makes the sale the act of the court, hence the propriety of denominating such sales, “judicial sales.”
In this state it has been common to denominate sheriff’s sales, whether under execution or decrees in partition, as judicial. Seymour v. Farrell, 51 Mo. 95; Hewitt v. Weatherby, 57 Mo. 276. But in most of the courts of last resort, and by the most discriminating text writers, the distinction has been consistently maintained between judicial sales and execution sales in those states in which execution sales are not required to be reported to the courts for approval. The sheriff sells by the naked authority of the writ and he must.
While execution sales have sometimes been denominated judicial sales by this court, it does not follow that the distinction drawn by other courts between administrator’s and other judicial sales, and •execution sales does not obtain in this court also. By our laws and decisions an administrator’s sale has no binding effect until approved by the probate court, thus bringing it strictly within the principle of those cases which hold such sales are judicial as contradistinguished from execution sales, which are ministerial.
The courts of this state have always endeavored to sustain sales made by ministerial officers under •executions on judgments. The welfare of the community demanded that they should, for in this way property brought fair prices and was not liable to sacrifice. But such sales are the acts of a ministerial ■officer, whose authority is derived from and. is regulated by the law itself, and he is' not required to call upon the court for approval of his acts. When the court renders judgment and awards execution, its function is ended. It does not direct the sheriff on what property to levy, or' how to make his sale. The law in such
In a judicial sale, he acts as the agent or instrument of the court to sell a particular piece of property. He is bound to report his proceedings to the court, and if the court approves his acts, it adopts them as its own, and it becomes a judicial act, and if the court has jurisdiction, its decision is not open to collateral attack.
We have been led into this discussion because the plaintiffs rely upon the case of Ladd v. Shippe, 57 Mo. 523, in which a sheriff postponed a sheriff’s sale of real estate on the day for which it was advertised to the succeeding day and this fact appearing on the face of the deed, it was held void, because the officer had no power to adjourn the ^ale.
The statute of 1835 required that “all property' taken in execution by any officer shall be exposed .to sale on the day for which it is advertised, between the hours of 9 in the forenoon and 5 of the afternoon, publicly, by auction, for ready money, and the highest bidder shall be the purchaser.” Judge Yobies says, “It does not appear at whose motion the sale was postponed by the court, or that either party was present consenting thereto; nor does it appear at what particular time the proclamation was made at the courthouse door. It seems to me that it would be a very dangerous precedent to hold that a sale might be postponed in this way; it would open the door for abuse.”
So that, while it may be true that a ministerial officer, acting under the statute, may be restricted to the methods prescribed - by the statute, it becomes necessary to inquire whether an adjournment of a sale made under a decree in chancery, or the order of a
In Blossom v. Railroad, 3 Wallace, 196, under a foreclosure decree, the marshal advertised the railroad for sale on June 6, 1862, but as no bids were received that day he adjourned the sale to the nineteenth of that month. He again offered it for sale and Blossom bid $250,000, which was the best bid at the time, but the agent of the stockholders requested the solicitors of complainant to postpone the sale to another day and they agreed and the marshal again continued the sale for two days, and announced that appellant’s bid would be regarded as pending. An arrangement was then made to prevent the sale altogether. Blossom, having increased his bid to the full amount of the debt, then applied to the court t® have the sale confirmed to him, but the court denied his prayer. His contention in the supreme, court was that, inasmuch as his bid was the highest, it was the duty of the marshal to strike it off to him and he had no right to postpone the sale.
Upon this state of facts the supreme court of the United States said, “Every such officer has a right to exercise a reasonable discretion to adjourn such a sale, and all that can be required of him is, that he should have proper qualifications, use due diligence in ascertaining the circumstances, and act in good faith, and with an honest intention to perform his duty. The general rule is, that a sheriff is not bound to obey the directions of the attorney of the creditor to make an unreasonable sale of the property' of the debtor, if he sees that the time selected, or other attending circumstances, will be likely to produce great sacrifice of the property; but he may in such a case, if he thinks proper, postpone the sale, especially if it appears that the creditor will not sustain any considerable injury by the delay; and no
The difference between an administrator acting under an order of court and a marshal or master in chancery under the decree of a court of equity is merely one of mode and in no wise affects the principle involved. In either case, the officer making the sale occupies a position of trust.
In Richard v. Holmes, 18 How. 143-147, the supreme court of the United States, discussing the duty of a trustee to postpone a sale in foreclosing under a deed of trust, said: “If he has not this power, the elements or many unexpected occurrences may prevent an attendance of bidders, and cause an inevitable sacrifice of the property. It is a power which every prudent owner would exercise in his own behalf under the circumstances supposed, and which he may well be presumed to intend to confer on another. This power of sale does not undertake to prescribe the particular manner of making the sale. It is to be at public auction, and ‘after having given public notice of such sale by advertisement at least thirty days’, but it assumes that the sale will be conducted as such sales are usually conducted. A sale regularly adjourned, so as to give notice to all persons present of the time and place to which it is adjourned, is, when made, in effect, the sale of which previous public notice was given.”
Other courts have held that that a public officer, upon whom a power of sale is conferred by law, may adjourn an advertised public sale to a different time and
So that a master in chancery under a decree, and an administrator or executor under an order of sale, may postpone a sale when it would otherwise result in injury to the estate or creditors, nor do we perceive the great danger in permitting such a course, seeing that it must be reported for approval. Until the court approves, no title, legal or equitable, can pass and it is open to the objections of all interested parties; but when 'the probate court, having, once acquired jurisdiction, .approves the sale, all these questions are concluded by its judgment, in all collateral actions. 2 Woerner’s Amer. Law of Adm., sec. 478; authorities, supra.
The approval of - the report in this case, which stated the postponement and the exigency therefor, was a judgment by the probate court that in its opinion the administrator exercised a wise discretion in adjourning said sale, and that judgment is final and conclusive until impeached and set aside in a direct proceeding. It results that the judgment of the circuit court-must be, and is, affirmed.