Garner v. Tucker
| Decision Date | 31 October 1875 |
| Citation | 61 Mo. 427 |
| Parties | A. J. GARNER, et al., Appellants, v. JOHN TUCKER, Respondent. |
| Court | Missouri Supreme Court |
Appeal from McDonald County Circuit Court.
Bray & Cravens, with L. M. Lloyd, for Appellants.
I. The refusal of the court, at the return of the order of publication, to make the order of sale, left the notice thereby given functus officio, and the order at the November term following, to sell at private sale of any kind, and the sale thereunder at the same term, were absolutely void. (Caldwell vs. Lockridge, 9 Mo., 362; Speck vs. Wohlien, 22 Mo., 317; Valle v, Fleming, 19 Mo., 454; Strouse vs. Drennan, 41 Mo., 289.) A sale can only be directed at a term subsequent to the application.
II. The final settlement of the administrator, and its approval by the court, was a final judgment. He had also been discharged, and his term of office as public administrator had terminated. Under such state of facts his control over the estate was at an end.
III. The proceedings in the probate court in August and October 1872 in approving a report of sale then made and filed by Daniel Harmon, were without authority of law, and the probate court acted without jurisdiction. The approval was a judicial act, and to bring the judicial power of the probate court to bear in the approval of a report of sale, the report must be made by a person having authority to make the report, and Harmon was functus officio. The expiration of his term of office, etc., worked a revocation of his letters and he could not even execute a deed, had the sale been properly reported and approved. (Wagn. Stat., 98, § 36.)
IV. The deed of Harmon to Tucker recited that the sale was made Nov. 20, 1867, when the report showed that it was made Nov. 8, 1867. Such a deed will not convey title.
C. W. Thrasher, for Respondent.
I. The appellants had personal notice of the presentation of the report of said sale, and had an opportunity to appeal if they were not satisfied with the action of the probate court on said report; and the approval of said sale was such a judgment as cannot be inquired into in this proceeding. (Tutt vs. Boyce, 51 Mo., 425; Tutt vs. Zenir, 51 Mo., 431; McVey vs. McVey, 51 Mo., 406; Rugle vs. Webster, 55 Mo., 246; Jones vs. Manly, 58 Mo., 558.)
II. The mistake in the recital in the deed as to the day of sale was a mere clerical error, and was corrected by the record and report of sale produced in evidence at the trial. (Moore vs. Wingate, 53 Mo., 398.)
III. The fact that the administrator in this case had made what purported to be a final settlement, did not discharge him from his trust as such administrator, and does not affect the validity of the report of sale and deed subsequently made by him. (Rugle vs. Webster, 55 Mo., 246.)
This was an action of ejectment brought by the plaintiffs, as heirs at law of John W. Cole, deceased, to recover the possession of certain lands in McDonald county. The defendant claimed title as purchaser at a sale of said lands, made in pursuance of certain orders of the probate court of McDonald county, by Daniel Harmon, the public administrator, of said county, having in charge, as such administrator, the estate of the said Cole, and by virtue of a certain deed purporting to have been made in pursuance of said sale.
The case was tried by the court without the aid of a jury, and there was a finding and judgment for the defendant, from which plaintiffs have appealed to this court.
It appears from the record, that at the May term of the probate court, in the year 1867, on the hearing of an application, regularly preferred for the sale of the land in controversy, the court sustained objections thereto, and refused to order the same to be sold. At the November term, 1867, and on the 4th day of said month, on what was termed an amended petition for the sale of real estate, which was unaccompanied by any accounts, lists, inventories or appraisements, and of which no notice was given by the administrator, but to which the record shows the widow and heirs appeared by attorney, an order was made for the sale of said real estate at private sale, and the same was purchased by the defendant. This sale was on the 9th day of November, 1867, reported to and approved by the court, and the administrator was ordered to make a deed. At the July term, 1869, said administrator made a final settlement of the estate of Cole, according to law, which was duly approved.
At the trial the plaintiff offered to show that in the year 1868, Daniel Harmon ceased to be public administrator, which testimony the court refused to receive. The present suit was instituted on the 5th day of February, 1872, and tried at the February term, 1874.
At the October term, 1872, of the probate court, Harmon made another report of the sale made by him as administrator in 1867, of the lands in question, having previously given notice to the plaintiffs of his intention so to do, which report was approved by the court on the 15th day of October, 1872, and said Harmon was ordered to make a deed as administrator, to the defendant, Tucker, which he accordingly did on the 15th day of January, 1873. This was the only conveyance relied upon by the defendant as giving him any title to the land. From the order of the probate court made in 1872, approving the sale and ordering a deed to be made, no appeal was taken.
The question arising on the foregoing state of facts is whether the report of sale and the approval of the same by the court in October, 1872, and the deed made by Harmon, in pursuance thereof, are of any validity.
Other points are presented by appellant's counsel, but under the previous rulings of this court they are not open for discussion.
It is strenuously insisted that the order of sale made in November, 1867, was a nullity. The mode of proceeding adopted by the...
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