41 Mo. 289 | Mo. | 1867
Lead Opinion
delivered the opinion of the court.
A preliminary question is.raised by the respondents’ counsel as to whether this court can take cognizance of this case as it now stands. The case was appealed from the Platte Circuit Court, and on a hearing in the District Court the judgment of the Circuit Court was reversed and the cause remanded, and it is now suggested that the judgment of the District Court is not such a final determination as will authorize an appeal. The law provides that, on all final judgments rendered in the District Courts, appeals, or writs of error, may be taken to the Supreme Court. It is true the judgment of the District Court is not a complete and final disposition of the 'cause, putting it at rest for ever, as is contemplated, and orders further proceedings in another court; nevertheless it may be said to .be final so far as the District Court is concerned, where, under a similar law, which declares that every person aggrieved by any final judgment or decision of any Circuit Court, might appeal, Ac., a writ of error was sued out from a judgment of the County Court to the Circuit Court, and, upon a trial in the latter court, the judgment of the County Court was reversed and the cause remanded for a new trial. From that decision an appeal was taken to the Supreme Court, and a motion was made to dismiss the appeal on the ground that the judgment was not final; but it was held, that the law was alike applicable to both writs of error and appeals ; that the decision in the Circuit Court destroyed the judgment in the court below, and, if it was erroneous, the judgment of reversal should be reversed, the effect of which would be to restore the judgment of the County Court; and that the judgment was final, from which an appeal or writ of error would well lie within the meaning of law. The motion was accordingly overruled—Rankin v. Perry, Adm’r, 5 Mo. 501; Perry v. Alford, 5 Mo. 503. This also seems to be the practice in New York, from which State our judicial system is framed and modelled. Aside from authority, upon principles of reason, we aré well
A different ruling would produce great injustice and protract litigation indefinitely. By a series of reversals in the intermediate courts, and remanding the cause, the contest would become interminable, and the defeated party would be wholly deprived of the right of having his controversy settled in the court of last resort. , We do not think that the law-makers contemplated such a result, or that the law will justly bear such a construction.
The case was ejectment, in the Circuit Court, for the recovery of a piece of land situate in the county of Platte. The plaintiff derived title from his father, who died seized and possessed of the premises, and the land was sol'd by his guardian by virtue of an order of the Probate Court. The defendants claim the real estate and resist the action under a title acquired by purchase at the guardian’s sale. The sale was had under the law of 1851, which prescribes the mode in which guardians shall proceed in selling the real estate of minors, and the cause for which the court is authorized to order the same to be sold. The first section provides, that in all cases where the real estate of minors is ordered to be sold under the provision of the twenty-second section of the act of 1845, concerning guardians, curators, and minors, such sale shall be advertised and conducted in the same manner provided by law for the advertising and conducting sales of real estate of deceased persons made by executors and administrators for the payment of debts. Section second requires that whenever any guardian or curator who should’sell any real estate belonging to his ward, under the order of any court having competent jurisdiction, he should report such sale to the court in the same manner as executors and administrators were required by law to report sales of real estate made by them for the payment of debts, and such sale, if approved by the court, should be valid to all intents and purposes. The third section prescribes the recitals which should be contained in the deed,
The twenty-second section of the act concerning guardians and curators, R. C. 1845, to which the above recited act is amendatory, gives the County Court power to order the sale of the real estate of minors for purposes of education only. By the provisions of the law relating to the sales of real estate by executors and administrators, referred to in the act of 1851, it was made necessary that, before any sale took place, the same should be appraised by three disinterested householders of the county in which the same was situated ; that it should be advertised in a certain prescribed manner, and that at the next term of the County Court after such sale the executor or administrator should make a full report of his proceedings, with the certificate of appraisement, and a- copy of the advertisement, which report should be verified by affidavit, &c.; and if such report and proceedings of the executor or administrator were not approved by the County Court, the proceedings should be void, and the court might order a new sale ; but if such report was approved, the sale should be valid. The record shows that the guardian petitioned the Probate Court for an order to sell the same to provide for the support and education of his ward; it is not shown that there ever was any appraisement, and the fact appears that there was none; and it also appeal’s by the record that the guardian reported his proceedings to the Probate Court on the day on which the sale took place, and the court entered its .order of approval on the same day, being of the same term. The position now as
Courts have gone great lengths to uphold judicial sales, and where real estate has been sold by order of a court having jurisdiction, the general rule is that the title derived in consequence of such sale cannot be attacked in a merely collateral proceeding, but will be good until set aside, or divested, in a direct action for that purpose. This rule is necessary to protect innocent purchasers and give repose to titles. Our County and Probate Courts are not courts of general jurisdiction according to the common law meaning of the term in which such liberal intendments are indulged, for they have only limited jurisdiction, which is specially conferred on them by statute ; but when they act in a matter in which they clearly have jurisdiction, the most liberal intendments and presumptions will be extended in support of their proceedings. The case of Grignon’s Lessee v. Astor et al., 2 How. 319, has gone further than any case in this country in upholding judicial sales of real estate. In that case it did not appear that the notice required by statute had been given by the administrator on the presentation of his petition for sale ; but the Supreme Court said, that, after the court of original jurisdiction had passed on the subject, they would indulge the presumption that the requisite steps were taken. There a great length of time had elapsed before the proceedings were commenced to impeach the sale, and the law is always favorably inclined to support judgments when sought to be attacked and destroyed in a remote period after rendition, especially when assailed for omissions to show evidence which is not strictly required to be entered of record. But this court has not gone to the extent of the ruling in Grignon v. Astor, and has held, that, in sales under the statute by guardians and administrators, the acts required to be done must be complied with, and that it is the duty of the pur
The petition upon which the court ordered the sale stated that it was necessary that the real estate should be sold to furnish means for the support and education of the ward. The law did not empower or authorize the court to order the sale of real estate for the support and maintenance of the minor, and this part of the prayer in the petition was void and gave no jurisdiction—Beal v. Harmon, 38 Mo. 435. But the court had the right to order the sale for purposes of education, and we should be justified in presuming that the court acted within the pale of its jurisdiction and made the order for that cause.
It here appears that no appraisement was made, and the law expressly requires, that, before the guardian shall sell any real estate, he shall have it appraised by three disinterested housholders of the county where the land lies, and at the next term of the court after such sale he shall make full report of his proceedings, with the certificate of appraisement. This is an absolute requirement of the law, and it should be obeyed even if the reason of it was not plainly perceived. But it was enacted for good and substantial reasons : it furnishes evidence to enlighten the judgment of the court in the approval or rejection of the sale. The appraisers must be disinterested householders acting under the sanction of an oath; no evidence could be more-satisfactory. It was the intention of the law to supply this medium of proof, and prevent the sacrifice to which the estate of minors might be exposed if courts were left to rely upon the interested representations of sharks and speculators as to value. The report was confirmed at the term at which the sale was made; in fact, on the very day of the sale. The court had no authority to proceed to act in the premises at that time, no more than a court would be to render final judgment at the return term of a writ, when the law declares that it could
To affirm the validity of the sale in this instance would be to sanction the violation of a law which is founded in justice and wise policy; nor do we consider that the views above enunciated operate harshly on purchasers, or tend to impair the validity of titles. It is the ■ duty of a purchaser, when he is about to buy real estate sold by authority of courts, to look to the order of the court and see whether there is authority to sell, and if so, what are the conditions and restrictions incident to its exercise. He must see that the terms, on which the power to sell depends, have been complied with; when this is done, he will be safe in buying, and his title will not be destroyed or vitiated by anything which takes place afterwards. The deed made by the guardian to the purchaser at the sale contains none of the statutory recitals and is informal and defective ; but as the case must be reversed, for the reason given above, we need not consider its effect.
The judgment of the District Court is reversed.
Rehearing
Petition for Rehearing by Respondent.
delivered the opinion of the court on the petition for rehearing.
The counsel for the defendants has filed his petition for a rehearing in this cause, and for a modification'of the opinion previously delivered. It is not contended that the judgment is wrong, for the deed made by the guardian is admittedly defective and incapable of conveying any title; but it is insisted that there is error in that part of the opinion which
In Frye v. Kimball, 16 Mo. 21, Mr Justice Ryland said, arguendo, “We will not disturb the title to real property acquired under sales made in pursuance of the orders of the
In Speck v. Wohlein 22 Mo. 310, it was insisted that the approval of a sale could not be questioned in a collateral proceeding ; but the court said, that, had the approval been made at the term required by law, there might have been some weight in the proposition ; the party affected could then have taken his appeal. But the objection to the proceeding was that the approval was made when the party was not in court, and not required to be there ; and the appeal had to be taken at the same term of the approval, and the party not having notice and not being present, could not take his appeal. It is true that the judge in that case did not intimate what effect an approval made under such circumstances would have if acted upon and consummated by a deed.
In Roberts v. Casey, 25 Mo. 584, Judge Napton, in speaking of tire duties and rights of a purchaser at a guardian’s sale, says that the purchaser cannot be held responsible for the acts of the guardian ; but he adds, “ undoubtedly where a title cannot be consummated without certain acts being done and an approval by the court of those acts, the case is different. The sales of administrators under the statute are of this character.” And he says that the purchaser must look to the order of the court, and see whether there is authority to sell, and if so, how far that authority is restricted,
The statute required that the sale should be approved at the next term after the land was sold; this was the crowning act, and till such approval took place at the proper time there could be no Valid sale ; and until such report and confirmation no appeal could be taken, for no notice was given, and no person was in court to act. The law on this point is well examined in Vallé v. Fleming.
the motion for a rehearing will be overruled.
