Shields v. Ashley's Administrator, 16 Mo. 471

Shields v. Ashley's Administrator

16 Mo. 471 | Mo. | 1852

Scott, Judge,

delivered the opinion of the court.

This was a proceeding begun by Atkinson, administrator of Ashley, in the Benton County Court, for the purpose of obtaining an order for the sale of the real estate belonging to the said Ashley, for the payment of debts due from his estate. Shields, who claimed the lands sought to be sold by virtue of a sale of them, made in a suit in chancery against a former administrator of Ashley, and his heirs and widow, came in and opposed the motion, or rather asked to have the order of sale set aside, after it was made. This was refused by the County Court, and on an appeal to the Circuit Court, by SMelds, his appeal was dismissed and he appealed to this court.

1. There is no ground for maintaining that, under our law of administration, a proceeding to sell real estate is analagous to the proceedings in rem, in courts of admiralty; and that orders of sale, obtained in such a procedure, have the same effect as a judgment in rem, in those courts. The statute which declares that the deed given in pursuance to such sales, shall only convey to the purchaser all the right, title and interest which the deceased had in such real estate, at the time of his death, would seem to place this matter in a clear light. But the notice of sale is only required to be given to persons interested in the estate. The word “ estate” here used, does not mean the real estate to be sold, but the entire estate of the *473deceased to be administered upon ; real, personal and mixed. Surely, one wbo bolds by a title paramount to that of tbe deceased cannot be said to be interested in bis estate, nor can one be wbo claims in tbe manner it is alleged that Shields claims in this case. Tbe statute contemplated that such only should be affected, by tbe proceedings, as were interested in tbe general course of administration — tbe creditors and heirs. Nor does tbe provision which makes the deed under -the sale pass to tbe purchaser all the right of tbe deceased, at tbe time of bis death, make Shields interested in the estate, in tbe sense in which those words are understood in tbe statute.

2. In conferring a power on the County Courts to sell real estate for the payment of debts, it was never designed to invest them with tbe jurisdiction of trying titles to land. Tbe article in tbe administration law, respecting tbe sale of real estate by executors and administrators, clearly shows this. Tbe organization of tbe courts forbids such a conclusion.

Shields, then, not being interested in tbe estate of Ashley, bad no right to interfere with tbe proceedings in tbe County Court, as they could not affect any interest be bad in the land sought to be sold, they being, as to him, res inter alios acta. Had Shields been a proper party, there would have been no impropriety in bis coming in during tbe same term, and moving to set aside tbe order of sale. If there was weight in bis objections, bis neglect to resist tbe application in tbe first instance should have been overlooked, on slight considerations. We have not deemed ourselves called upon to pronounce an opinion on tbe validity of tbe proceedings in tbe County Court, as they appear on tbe face of tbe record, nor do we now express any ; but we will say it is best for courts to transact their business with such regularity as will prevent future litigation respecting it. When it is foreseen that difficulties'may thereafter arise from tbe omission of statutory requirements, surely it is tbe part of wisdom to have them supplied whilst it is practicable. This consideration should induce tbe County Court to retrace its steps and examine whether tbe law has been *474pursued, in the course which has been adopted. When there is a doubt about the regularity of the proceedings, which result in the sale of real estate, it represses the ardor of bidders at an auction, and causes a sacrifice of the property condemned to be sold. Hence courts cannot be too cautious in requiring, in all such proceedings, a strict compliance with the forms of the law.

The other Judges concurring, the .judgment will be affirmed.