72 P. 1102 | Kan. | 1903
The defendant in error recovered a tract •of land in an action of ejectment upon a title derived through an administrator’s sale and deed. The defense was that the probate court had directed the sale to be public, and that it was in fact made privately. Prior to the commencement of the ejectment suit it was discovered that the record in the probate court disclosed a direction to the administrator to sell at public sale. Upon due notice to the plaintiff in error a hearing was had in the probate court, in which he participated, resulting in a finding that the original order in fact was that the administrator sell at public or private sale, and the record was, corrected to show the truth. Upon the trial of the ejectment suit, the district court found as a fact that the original order of the probate court was that the land should be sold at public or private sale. Under these circumstances the administrator’s sale was valid, and the deed conveyed a good title.
Plaintiff in error, in his brief and in the oral argument, discusses the following questions:
“A sale of real estate at private sale by an administrator, under an order of the court directing a public sale, is void.
“An order of the court attempting to change such an ordér of sale by making it read ‘at public or private sale,’ made at a succeeding term and after said sale, changes the original order in a substantive and material part, and therefore exceeds the authority of the court to amend its records, and such action of the court is void and of no effect.”
Under the foregoing facts, however, it will be observed that neither of these questions is involved in the record. The probate court did not attempt to change an order of sale to make it read “at public or private sale,” and did not change the original order in a substantive and material part. It did not change or attempt to change the order at all, and the private sale by the administrator was not made under an order of court directing a public sale.
The judgment of the district court is therefore affirn •
