60 Kan. 549 | Kan. | 1899
The opinion of the court was delivered by
At the time the land wTas sold the plaintiff below was a minor about four years of age. This action was commenced within two years after she reached her majority. We think a right of action was saved to her under section 11, chapter 95, General Statutes of 1897. (Gen. Stat. 1889, ¶ 4094.) Said] section 11 refers to the five paragraphs composing section 10. The remedy sought in this action is mentioned in'the second paragraph of said section 10.
The first assignment of error relates to the jurisdiction of the probate court. It is claimed that the failure of the petition for the appointment of an administrator to allege that the deceased, Samuel K. Thompson, was an inhabitant of Shawnee county or a non-resident of the state at the time of his death, did not confer jurisdiction upon the probate court to do any act in relation to the administration of the estate. Authorities are cited from other states which fortify the position of plaintiff in error on this question. (Estate of Moore v. Moore, 33 Neb. 509, 50 N. W. 443.) It is admitted, however, that Samuel K: Thompson was, in fact, an inhabitant of Shawnee county at the time of his death. In Brubaker v. Jones,
“The statute does not anywhere prescribe how the jurisdictional facts shall be ascertained; hence the probate court may ascertain them as best it can; and if it ascertain them correctly, that is all that is required. All that is really necessary is that the jurisdictional facts shall exist as facts ; and how the court ascertains them is wholly immaterial. And when the court ascertains these facts and makes the appointment, the letters of administration are themselves prima facie evidence of such facts.”
The probate court ascertained the fact that the deceased was an inhabitant of Shawnee county at the time of his death, and the issuance of letters of administration will be taken as prima facie evidence that the court had jurisdiction over the matter. The question raised by plaintiff in error does not longer admit of debate in this state.
When the petition to sell the real estate was presented, the court set the hearing for thd 9th day of August, and ordered that notice of the same be given “ by publication for two weeks prior to said 9th day of August.” The first publication of the notice was on July 29 and the last on August 5. It is contended that, because only eleven days elapsed between the first publication and the day of hearing the petition, the order of sale was void. Section 118, chapter 107, General Statutes of 1897 (Gen. Stat. 1889, ¶ 2902), relating to proceedings in the probate court for the sale of lands of decedents, reads: “The court shall require notice of the petition, and of the time and place of hearing the same, to be given for such length of time and in such manner as the court may see proper.” The court had, under this section, full authority and discretion to fix the time of the notice as
“As to the matters upon which a court is required to adjudicate in its order of confirmation, we see no reason why its decision should not be binding, and should not preclude the reassertion of any matter which was either passed upon by the court or which the parties might have had passed upon if they had chosen to bring it to the attention of the court. After a sale has been confirmed, it cannot be defeated by showing collaterally that there was a failure to appraise the property or a defect in the notices of sale, or that the administrator did not exact security for the payment of the purchase-money, or that the commissioner-who made the sale was not authorized to make it.”
There is a wide distinction between cases where the notice is defective and where there has been no notice at all. In the latter the court is without jurisdiction to act. (Bryan v. Bauder, 23 Kan. 95.) In Fleming v. Bale, 23 Kan. 88, a petition was filed January 18 in the probate court for the sale of real estate to pay debts of the deceased. It was ordered that the administrator cause notice of' the pendency of the proceeding, and the' time and hearing of the same, to be published in a newspaper for two consecutive weeks, and the hearing was set for January 29. The notices were published on the 20th and 27th of January. The court held that this order meant that the publication should be made two consecutive times. The court says : “ We do not think any of the foregoing irregularities or defects can vitiate the proceeding of the
It is next contended that the sale of the real estate, having been advertised to be held at the door of the court-house on September 11, was void when held elsewhere at a subsequent time. The statute provides that the sale shall be made by auction at the door of the court-house, or at such other place as the court may direct. (Gen. Stat. 1897, ch. 107, § 130; Gen. Stat. 1889, ¶ 2915.) The court had power to fix the time and place of sale in the first instance at the place where and time when it was finally held. It ratified and confirmed the sale so made. It approved a sale made at a time and place which it had full power to fix in the original order. Mr. Freeman, in his work on Void Judicial Sales, section 44, says :
"AVith respect to chancery and probate sales, we apprehend that their confirmation has an effect beyond that conceded in Kansas to the confirmation of execution sales. The object of the proceeding for confirmation is to furnish an opportunity for inquiry respecting the acts which have been done under the license to sell. The court may, if it deems best, ratify various irregularities in the proceedings. If the officer changed the terms of the sale, the court may ratify his action, provided the terms, as changed, are such as the court had power to impose in the first instance.”
The strict rules applicable to tax sales cannot be applied to'sales made under the supervision of the probate court. Tax sales are wholly regulated by statute, and no tribunal is created by law to direct or confirm them. They differ widely from sales ordered by a court of record. In Howbert v. Heyle, 47 Kan. 58, 27 Pac. 116, it is said :
" It must also be remembered that the probate court*556 in this state is a court of record (Const., art. 3, § 8, Act Relating to Probate Courts, § 1) ; and, while it has jurisdiction only of particular classes of things, such as the care of the 'estates of deceased persons, minors, and persons of unsound mind, yet it has general jurisdiction of these things. Plence all presumptions should be in favor of the regularity of all the proceedings of probate courts, within their jurisdiction, of the aforesaid particular classes of things, and such proceedings should seldom be held to be void when attacked collaterally, as in this case ; never, indeed, except where it is shown affirmatively that the court had no jurisdiction."
In Emery v. Vroman, 19 Wis. 724, a guardian’s sale of real estate was ordered by the probate court, in which order it was directed that certain .other property should be first sold before resorting to the real estate in controversy. The sale was confirmed. The court said :
“ The lands were not sold in the order of the license. This defect, if such it was, was cured by the order of confirmation. The same court from which the order emanated had, in its discretion, the power to modify it, or to dispense with its strict performance in the particular named. This was done by the order of confirmation." See, also, Jacob’s Appeal, 23 Pa. St. 477; Thorn v. Ingram, 25 Ark. 52.
The sale of the property seems to have been fairly made, at a place near to the land in controversy, at a time when a public sale had drawn together a large number of persons. In fact, it appears that the place where the sale was held was much more favorable to the obtaining of a higher price than if the land had been sold at the door of the court-house in Topeka. The complaint that the property was purchased by the auctioneer, J. Q,. A. Peyton, who was an agent of the administrator, is without merit. The proof showed and that between the time of the sale and the execu
While there were irregularities in the proceedings of the probate court and in the action of the administrator which might have been sufficient in a direct attack thereon to have justified a setting aside of the sale, yet we find no such vital defects therein as to deprive the probate court of jurisdiction, and the sale having been confirmed by that court and the deed issued, the proceedings must stand as against a collateral attack of this nature. The judgment of the district court will be affirmed.