58 Mo. 352 | Mo. | 1874
delivered the opinion of the court.
The questions presented by this record arose out of a motion to quash an execution, on a judgment or decree, in the same court in which the decree was rendered.
This decree was rendered on a failure to answer the petition, and as the decree finds all the facts to be true, 'as stated in the petition, it is useless to recite the petition. Both the petition and decree contain statements' that have no bearing on the case; but the substance of the finding of the court, and of the judgment thereon, may be condensed into the following statement, which seems to be that upon which the counsel on both sides agree.
It is foundry the court, that in Sept., 1861, A. E. Kennon died intestate; that letters of administration on his estate were first granted to his widow, Masidora A. E. Kennon, (now Mrs. Wood) and subsequently to her second husband, Wood J that Kennon owned certain lots in Fredericktown and other lots in Ironton : that plaintiffs were Wood’s sureties on his bond as administrator. Kennon was indebted to the county of Madison on account of money borrowed from the school fund, and. this indebtedness, not having been discharged by Kennon, was allowed in the Probate Court against his estate.
The administrator, Wood,' defendant in this ease, obtained an order from the Probate court to sell the real estate of Ken-non at Fredericktown, in order to pay off this indebtedness to Madison county. At the sale his "wife became the purchaser, and he so reported it to the court; but the purchase money was not paid by Wood, and the county of Madison, by certain proceedings stated in the decree, made it out of his sureties, the plaintiffs.
The sureties allege this sale to have been frandnlent and void, and the court so finds it, and decrees that it be set aside, and the judgment of the court is, “It is further considered,
“Witness, Th. Holliday, clerk of our said Circuit Court, with the seal thereof, etc.”
The plaintiffs, as the returns of the sheriff show, were the .purchasers on the execution. The motion to quash is in the name of Ira L. Wood and his'wife. This motion was sustained in the Circuit Court, and the appeal here is from the judgment on this motion to quash.
An execution must certainly have a valid judgment to support it, and if the judgment is of no validity, the execution ■ will be equally void.
The judgment in tliip case it is not pretended was right. So far as it related to a cancellation of the deed and a substi
We have no concern with anything except the judgment and execution, since there was no appeal or writ of error to the judgment. But if the judgment could not sustain the execution and was a nullity the execution could not avail.
The judgment was against a married woman, personally, and also against an estate of a deceased party. There could be no doubt of the power of the court to order the deed to be cancelled, and to direct that the land conveyed be considered as a part of the estate of Kennon ; but then the claim would take the course prescribed by our statute in relation to elaims against the estate of a decedent. But the judgment was not merely against the estate of the decedent, which could only warrant a proceeding in the Probate Court, but against the wife of his administrator.
To cite authorities to prove that in this State a judgment against the administrator of a decedent could only be executed by a proceeding in the Probate Court is unnecessary. It has so long been in our statutes that an examination of them is unnecessary.
No execution is allowed here against the estate of dead persons. Judgments against such have to be classified like other claims. But here is a judgment against Wood, administrator, personally, and against his wife, for a certain sum of money, and also a judgment that the money be made by a levy on the estate of Kennon, of which Wood was administrator, and against the estate of his wife.
The personal judgment against the wife for the money claimed was of course a nullity. She was not responsible as widow of her husband, who contracted the debt, or as his administratrix, or his heir, or as'the wife of his administrator. The main object of the petition was to set aside and delare null, on account of fraud, a sale of lots in Frederick;town by the administrator and a purchase, or alleged purchase,
Beyond this nothing further was aslced except under the general prayer for relief. Allowing that under this general prayer for relief a decree might go. against the defendant, Wood, personally, it could certainly not go against his wife. But Wood was sued as administrator, and as such his sale and conveyance to his wife was declared null, and then a personal judgment was entered against him and his wife, and along with this a judgment against the estate of Kennon, and the execution, following the judgment, was against Kennon’s estate, against Wood, and against Mrs. Wood, and her interest in dower in Kennon’s estate.
The judgment, so far as it affected Kennon’s estate, would not authorize any execution but would have to be proceeded on in the Probate Court, as other judgments. So far as it affected Mrs. Wood, formerly Mrs. Kennon, it was a nullity, as no personal judgment could be had against a married woman; so far as it was a personal judgment against Wood, it might have been executed, but the execution was against property of Kennon’s estate and against property of Mrs. Wood, as well as Wood, and was in fact levied, as the return shows, on property of Kennon’s estate.
.The main ground on which this execution is sought to be supported is, that there was no appeal from the judgment, and no writ of error sued out, and therefore, in this proceeding it must be assumed as right; and the case of Brackett vs. Brackett, (53 Mo., 265,) is relied on to support this proposition. In that case it was held that where a coui't has power to render a judgment, any mere irregularity in the proceedings, which may be overruled by appeal or writ of eiTor, or other proceeding to correct the judgment, will not avail in a motion to quash the execution. Axxd this proposition is correct, and its application in the case referred to was obviously right.
Conceding that no inquiry on such a motion would be allowed in regard to the judgment against Wood, personally, nor in regard to the judgment against the estate of Kennon, yet the judgment against the wife of Wood was clearly á nullity, and no execution could be had against the estate of Kennon. But the execution in this case is against both Mrs.
Wood and against Kennon’s estate, and the return shows that it was levied on the latter, and on Mrs. Wood’s dower interest in it.
We think the court below properly quashed the execution, because no writ could go against the estate of a decedent; (Wagn. Stat., Title Execution, § 22; Id., Title Judgments, §§ 15, 16, 17; Id., Title Administrator, §§ 11-17.)
Judgment affirmed;