Blickensderffer v. Hanna
| Decision Date | 29 November 1910 |
| Citation | 132 S.W. 678,231 Mo. 93 |
| Parties | ROBERT BLICKENSDERFFER v. F. G. HANNA et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Laclede Circuit Court. -- Hon. L. B. Woodside, Judge.
Affirmed.
O. L Cravens and L. C. Mayfield for appellants.
(1) It is undoubtedly true that probate court judgments are not subject to collateral attack, unless it appears to have exceeded its jurisdiction as attested by its own accompanying record. When so shown, its judgments possess no validity. Langston v. Canterbury, 173 Mo. 131; Hutchison v. Shelley, 133 Mo. 412; St. Louis v. Hollrah, 175 Mo. 85; Desloge v. Tucker, 196 Mo. 601. The order of sale made July 12, 1875, on the petition of Atchley administrator de bonis non, shows that the court found "that the personal estate of the deceased, in the hands of the administrator, is not sufficient to pay the debts due and owing by said estate." The court files show by the application of the administrator (McElvain) to correct the third annual settlement of executor Jones, filed July 14 1874, "that J. P. Hanna, as representative of the sole heir of said estate, paid all the claims of said estate and that said Wm. Jones never received in his hands or paid off any claims against said estate." Authority and jurisdiction of the probate court to sell land are found only in the fact that such sale is necessary to pay debts. The insufficiency of the personalty for that purpose is the first requisite to jurisdiction. Farrer v. Dean, 24 Mo. 16; Langston v. Canterbury, 173 Mo. 131; Teverbaugh v. Hawkins, 82 Mo. 180. We concede that the finding of the probate court that there was no personal property in the hands of the administrator sufficient to pay the debts due and owing by the estate, cannot be impeached in this collateral proceeding, except by the records and files of the probate court. The first settlement of executor Jones shows that he charges himself with $ 1120.88, and asks credit for $ 225.67, and balances the account by showing $ 895.21 to be due the estate, which is an error, and should be $ 995.21. His second settlement charges his balance due the estate on the first settlement at $ 895.21, instead of the true balance of $ 995.21, and, deducting $ 13 for disbursements, shows a balance of $ 882.21, instead of the true balance of $ 982.21, and his third and last settlement, after deducting $ 803.25 "by J. P. Hanna's receipt for personal property," manages to bring the estate in his debt $ 169.14, but the true balance, even allowing him credit for the J. P. Hanna receipt of $ 803.25, should be only $ 69.14 indebtedness of the estate to him. It is true the court by order authorized the executor to deliver to J. P. Hanna the personal property of the estate as inventoried, amounting to $ 803.85, as shown in the bill of appraisement. There was no law authorizing this to be done, and the order must be treated as a nullity and afforded Jones no protection unless good and sufficient bond be taken as required by article 2, section 63, Wagner's Statutes. That this was not done raises a presumption that there were no creditors of the estate at that date, April 10, 1872, who were not satisfied, the time for proving claims having long since expired, and the property being delivered or ordered delivered to the representative of the sole heir and legatee of the deceased. Wagner's Stats., art. 2, sec. 10. Upon the petition of administrator Atchley, the probate court, on April 14, 1875, made an order of publication reciting and finding "that there is not sufficient assets on hand to pay the same (debts)." The order of sale made July 12, 1875, recites and finds "that the personal estate of the deceased, in the hands of the said administrator, is not sufficient to pay the debts due and owing by the said estate." This equivocal finding does not meet the requirement of the statute. The statute required that, before a sale could be petitioned for and ordered, the "personal estate shall be insufficient" to pay the debts of the estate. The probate court record shows there were no "accounts, lists and inventories" (Wagner's Stats., p. 96, sec. 25) made by Atchley. The only accounts, lists and inventories that the probate court could have had before it were those previously made by executor Jones. These showed, as we have proved, that there was a personal asset of more than $ 800. Thereby the record of the order of sale by the probate court was impeached by other portions of the record of equal dignity. At most and as to the administrator de bonis non, the result was a claim in his hands in favor of the estate against the bond of executor Jones or against Hanna. This he should have enforced. Orchard v. Wright, 225 Mo. 414. (2) The order of publication on the petition of administrator Atchley to sell the real estate requires that it be published in the Lebanon Journal. The order of sale shows and finds that it was published in the Lebanon Chronicle and not in the Journal. The defect is fatal to the jurisdiction to make the order. If it is required to be published in some newspaper in the county, by the principle governing the power under which courts of like jurisdiction act, it had authority to designate the paper, and by so doing it exhausted its authority. Cunningham v. Anderson, 107 Mo. 371. The court's directions must be followed. 17 Am. & Eng. Ency. Law (2 Ed.), 966. And this must be so whether the defendant was prejudiced or not. Brisbane v. Peabody, 3 How. Prac. 109; State ex rel. v. Reid, 134 Mo.App. 582. (3) It clearly appears by the probate court records that a private sale was ordered. It is equally clear that the sale was at public auction, as shown by the order of approval and report and the deed to plaintiff. This court may have gone far in holding the order of approval of a sale by the probate court to cure prior irregularities, but it has not yet held, so far as we can find, that a sale held at public auction in violation of an order to sell at private sale is valid. It must be conceded that a probate court, subsequent to a term at which it rendered a judgment, has no power to alter or revise such judgment. Peake v. Read, 14 Mo. 79; 1 Woerner's Am. Law Adm. (2 Ed.), * 331, sec. 146. Such being the law, it must be conceded that the order approving the sale cannot be taken as a revision or modification of the prior order of sale, and it remains to be determined whether the sale at public auction by the administrator is a mere informality; if it be not such then the sale is void. To hold otherwise would, in effect, be a collateral attack on such prior order, through the office of the order of approval. 1 Wagner's Stats., p. 97, sec. 26; 1 Woerner's Am. Law Adm. (2 Ed.), *328, sec. 145. A private sale confers no title unless the order given by the court under its statutory powers so directs. Fambro v. Gantt, 12 Ala. 298; Schlicker v. Hemenway, 110 Cal. 579. "The approval . . . . is in effect a judgment that the sale has been conducted according to law and the order of the court." Hughes v. McDivitt, 102 Mo. 77. But the judgment approving the sale here stands impeached by the order of sale, which shows the sale not to have been held as ordered. Failure to follow the order requiring the holding of private sale is fatal to plaintiff's title. Luttrell v. Wells, 97 Ky. 84; Ellet v. Paxson, 2 W. & S. (Pa.) 418; Covington v. Chamblin, 156 Mo. 587; 17 Am. & Eng. Ency. Law (2 Ed.), 816; 1 Wagner's Stats., p. 119, sec. 1; Grayson v. Weddle, 63 Mo. 523; Cunningham v. Anderson, 107 Mo. 371; Gaines v. New Orleans, 73 U.S. 642; Gaines v. De La Croix, 73 U.S. 719. The probate court lost jurisdiction (a) upon the failure of the administrator to publish the order of publication in the Journal, or (b) it lost jurisdiction upon the failure of the administrator to hold a private sale as directed by the order. In one event or the other, the jurisdiction was lost and the subsequent approval of the sale was void. State ex rel. v. Mitchell, 115 S.W. (Mo. App.) 1098; State ex rel. v. County Court, 119 S.W. (Mo. App.) 1010; Walser v. Gilchrist, 220 Mo. 314. Where the manner of selling the real estate of a deceased person is ordered by the court, the executor or administrator must strictly conform to its requirements. Reynolds v. Wilson, 15 Ill. 394; Gould v. Garrison, 48 Ill. 258; Hand v. Matter, 73 Mo. 457. In making the sale the administrator must comply with every essential requirement of the statute and strictly follow the directions of the court. Tennant v. Pattons, 6 Leigh (Va.) 196; Wyman v. Campbell, 6 Port. (Ala.) 219; Worthy v. Johnson, 8 Ga. 236; Filmore v. Reithman, 6 Colo. 120; Vance v. Maroney, 4 Colo. 47; Lockwood v. Sturdevant, 6 Conn. 373; Berger v. Duff, 4 Johns. Ch. 368; Cruikshank v. Luttrell, 67 Ala. 318; Reed v. Aubrey, 91 Ga. 435. (4) Unless there be a previous court order made authorizing the sale made by the administrator, it has no validity. It was within the power of the court to order either a public or private sale. Having ordered a private sale, it in effect ordered the land to not be sold at public sale. Therefore, the public sale is as though no previous order had been made at all; and the sale here is void. Evans v. Snyder, 64 Mo. 516; Green v. Holt, 76 Mo. 677; Melton v. Fitch, 125 Mo. 281; Hutchinson v. Shelley, 133 Mo. 400; Burnham v. Hitt, 143 Mo. 414; Lessee v. Park, 4 Ohio 5.
W. I. Wallace for respondent.
(1) The judgment, orders and decrees of courts having the probate jurisdiction upon matters and between parties over which the court has jurisdiction cannot be collaterally questioned. Camden v. Plain, 91 Mo. 117; Sherwood v Baker, 105 Mo. 472; Macey v. Stark, 116 Mo. 481. Probate courts are courts of superior though limited jurisdiction, whose judgments are not subject to...
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