23 Kan. 425 | Kan. | 1880
Lead Opinion
The opinion of the court was delivered by
This was an action of ejectment, brought by purchasers from the heirs of Peter Cadue to recover possession of certain lands held by defendants under a deed from the administrator de bonis non of the estate of said Peter Cadue. The case turns therefore upon the validity of such deed, and two questions are presented: first, as to the effect of such deed as evidence; and second, as to the jurisdiction of the court to appoint an administrator. If the court had no jurisdiction to appoint an administrator, then of course the deed fails, and if the deed is not of itself, with the other evidence, sufficient proof of the regularity of the proceedings, and the validity of the sale, then also the defendants must fail. The case was tried by the court without a jury, and a general finding for defendants, made.
And first, as to the effect of the deed as evidence. The sale and deed were in 1865 and under the laws of 1859, and the contention of plaintiffs is, that the deed is not in conformity with the requirements of that law, and therefore worthless as evidence, and there béing no other evidence of the regularity of the sale, that the finding for defendants is erroneous. The law of 1859 provided for a deed “reciting the order of sale,” etc. (Comp. Laws 1862, p.533, §141.) The deed simply states that on January 2, 1865, the probate court of Doniphan county ordered the administrator to sell. No copy of the order is given. Counsel argue' that the word “recite” means copy, and that no copy being given, the statute was not complied with, and therefore that the deed lacks force as evidence. We shall not stop to decide this question, for, conceding the claim of counsel to be correct, we think subsequent legislation obviates the objection. The law of
“Deeds of real estate, made by executors or administrators, before the general statute of 1868 took effect, and which conform to said general statute, or which would be sufficient in form if the same had been executed in proceedings commenced after such statutes took effect, shall not be held irregular or invalid because of the omission of any recitals required by previous law; and notwithstanding such omissions, such deeds shall be held prima fade evidence of the regularity of the proceedings of such administrator or executor, and of- the probate court, and prima fade evidence that the right, title and interest of the deceased in and to such land has been vested in the purchaser, under such deeds, in the same manner as if no such omission had been made.”
This statute fits this case exactly. Conceding the defect in the deed under the statute of 1859, it is beyond doubt complete and sufficient under the law of 1868. The only question therefore is, as to the power of the legislature thus to modify a matter of evidence, and of the power of the legislature in this respect we have no doubt. Reason and authority both uphold it. It will be noticed that no attempt is made to declare an incomplete deed, or any deed, eonclusive evidence. Any such statute may be open to question. It might be argued that where certain things must be done before title can be divested, no legislature can, under pretense of a mere rule of evidence, prevent inquiry as to whether such things were in fact done. (County Seat of Linn Co., 15 Kas. 527.) All that is attempted is, to declare that certain instruments shall be prima fade evidence of prior proceedings and prior rights, and this is simply legislation affecting the remedy — merely changing rules of evidence. The effect of a complete and statutory deed under the laws of 1859 was determined by legislative enactment. Without the statute,
“But no man can have a vested right in-a mere mode of redress provided by statute. The legislature may at any time repeal or modify such laws. They may prescribe the*429 number of witnesses which shall be necessary to establish a fact in court, and may again, at pleasure, modify or repeal such law; and so they may prescribe what shall and what shall not be evidence of a fact, whether it be in writing or oral; and it makes no difference whether it be in reference to contracts existing at the time, or prospectively.”
Cooley on Const. Lim., p. 368, also says :
‘‘A strong instance in illustration of legislative control over •evidence will be found in the laws of some of the states, in regard to conveyances of lands upon sales to satisfy delinquent taxes. Independent of special statutory rule on the subject, such conveyances would not be evidence of title. They are executed under a statutory power, and it devolves upon the claimant under them to show that the successive steps which, under the statute, led to such conveyance, have been taken; but it cannot be doubted that this rule may be so changed as to make a tax deed prima facie evidence that all the proceedings have been regular, and that the purchaser has acquired under them a complete title. The burden of proof is thereby changed from one party to the other; the legal presumption, which the statute creates in favor of the purchaser, being sufficient, in connection with the deed, to establish his case, unless it is overcome by countervailing testimony. Statutes making defective records evidence of valid conveyances are of a similar nature, and these usually, perhaps always, have reference to records before made, and provide for making them competent evidence where before they were merely void ; but they divest no title, and are not even retrospective in character. They merelj' establish what the legislature regards as a reasonable and just rule for the presentation by the parties of their rights before the courts in the future.”
It seems scarcely necessary to add anything to these authorities. It will be noticed that this legislation does not attempt to change titles, but only evidence. It does not purport to correct defective proceedings, or to supply omissions, as in some cases it has power to do. It is in no proper sense a curative act. And yet many such acts, which are a far higher exercise of power, are within the scope of legislative authority. (City of Emporia v. Norton, 13 Kas. 569.) This statute does not purport to say that an order of sale may be omitted, or that the want of an appraisement is not fatal, or that a
Administration was had under the laws of 1859. Section 2 provides that “letters testamentary and of administration shall be granted in the county in which the mansion-house or place of abode of the deceased is situated. If he had no mansion-house or place of abode at the time of his death, and be possessed of lands, letters shall be granted in the county in which the land or a part thereof lies.” (Comp. Laws 1862, p. 512, § 2.) As Cadue died seized of lands in Doniphan county, administration was proper in that county, unless it is shown that he had a mansion-house or place of abode in some other county. There is no pretense of any testimony that he had a mansion-house elsewhere, but the claim is that he had a place of abode in Atchison county at the time of his death, and that therefore the probate court of that county alone had jurisdiction of his estate. The only testimony bearing on this question is that of Joshua Sanders, one of the
We have considered this testimony as though the question ■of jurisdiction was fully open to inquiry as an original question— but is this strictly so?
There being no other question in the case, the judgment will be affirmed.
Concurrence Opinion
I concur in the result reached by my brother Brewer; but I wish to say more especially, that I do not agree with counsel for plaintiffs in error, that the word “reciting,” used in § 141 of the executors’ and administrators’ act of 1859, (Comp. Laws of 1862, pp. 532, 533,) means the same, or as much, as the word “copying” or “transcribing” does. If the legislature had meant “copying,” it would have .-said “copying;” besides, to substitute the word “copying” for the word “reciting,” makes nonsense. The words are, “reciting the order of sale, and the court by which it was made,” etc. How could “the court” be copied into an administrator’s deed? How would it sound to say, “copying the court” in such a case?