O'Keefe v. Behrens

• Citation: 85 P. 555,73 Kan. 469
• Decision Date: 07 April 1906
• Docket Number: 14,566
• Parties: WILLIAM O'KEEFE et al. v. CHARLES F. BEHRENS et al
• Court: United States State Supreme Court of Kansas

85 P. 555

73 Kan. 469

WILLIAM O'KEEFE et al. v. CHARLES F. BEHRENS et al

No. 14,566

Supreme Court of Kansas

April 7, 1906

Decided January, 1906.

Error from Montgomery district court; THOMAS J. FLANNELLY, judge.

SYLLABUS

SYLLABUS BY THE COURT.

1. LIMITATION OF ACTIONS--Administrator's Sale Void for Want of Notice--Action by Heirs. Section 16 of the code of civil procedure (Gen. Stat. 1901, § 4444), requiring actions brought by the heirs of a deceased person for the recovery of real property descending to them but sold by an administrator of the estate of the decedent upon an order of court directing such sale to be commenced within five years after the date of the recording of the deed made in pursuance of the sale, applies to sales which are void for want of notice to the heirs of the proceedings upon which the deed is based.

2. DESCENTS AND DISTRIBUTIONS--Rights of Heirs to Possession and Partition. Heirs suing for the possession and partition of real estate to which they have acquired title by descent are not required to show, as a condition precedent to recovery, that the land is not subject to appropriation for the payment of the decedent's debts.

3. PLEADING--Written Instrument--Denial under Oath. An allegation that a party is the owner of real property "under a valid and legal deed of conveyance duly executed" describes no written instrument whose execution is admitted unless denied under oath.

4. PLEADING--Administrator's Deed--Effect of Failure to Deny Execution. Failure to deny the execution of an administrator's deed under oath does not admit the validity of the proceedings upon which it is based.

J. B Ziegler, and S. H. Piper, for plaintiffs in error.

O. P. Ergenbright, and J. B. Tomlinson, for defendants in error; P. O. Jones, of counsel.

BURCH J. GREENE, MASON, SMITH, PORTER, GRAVES, JJ., concurring. JOHNSTON, C. J. dissenting.

OPINION

BURCH, J.

John F. Behrens, the owner of the real estate in controversy, died intestate in June, 1890. On January 30, 1896, plaintiff in error O'Keefe placed upon record an administrator's deed of the land to him, regular upon its face, and duly approved, executed and delivered in pursuance of a sale directed to be made by an order of the probate court. In December, 1903, the heirs of the decedent commenced an action of ejectment for the recovery of the land, and on the trial attacked the administrator's deed as void. They claimed that the probate court had no jurisdiction to grant the order of sale because no notice of the hearing of the application to sell had been given (Mickel v. Hicks, 19 Kan. 578, 21 Am. Rep. 161), and that unless founded upon a valid order of sale the deed could not devest them of their inheritance.

Whether the proof offered was sufficient to establish this claim need not be discussed, and is not decided. For the purposes of the case it will be assumed that no order respecting notice was made, that notice was neither given nor waived, that none of the heirs appeared in the probate proceedings, and hence that the order of sale was void and open to attack in a collateral proceeding. The question still remains whether the action was barred under the provisions of section 16 of the code of civil procedure, which reads as follows:

"Actions for the recovery of real property, or for the determination of any adverse right or interest

therein, can only be brought within the periods hereinafter prescribed after the cause of action shall have accrued, and at no time thereafter: . . .

"Second, An action for the recovery of real property sold by executors, administrators or guardians, upon an order or judgment of a court directing such sale, brought by the heirs or devisees of the deceased person, or the ward or his guardian, or any person claiming under any or either of them, by title acquired after the date of the judgment or order, within five years after the date of the recording of the deed made in pursuance of the sale." (Gen. Stat. 1901, § 4444.)

The question suggested was fairly decided in the case of Young v. Walker, 26 Kan. 242. The action there under consideration was one of ejectment against a claimant under an administrator's deed. There were defects in the proceedings upon which the deed was founded. The court held that the statute cited applied, and in the course of the opinion said:

"We shall assume for the purposes of the case that, except for the statute of limitations, the administrator's deed would be void. We shall assume for the purposes of the case that the irregularities in the proceedings of the probate court, and of the administrator, are sufficient to render the administrator's deed void in any action or proceeding that might have been commenced before the statute of limitations had completely run, and this whether the deed was attacked directly or collaterally; and with such assumptions we shall proceed to a discussion of the question whether the statute of limitations has in fact so run as to make the deed valid. Of course the statute of limitations must have some use. It was not enacted for the purpose of curing administrators' deeds which were already good. It was really enacted for the purpose of curing administrators' deeds which would otherwise be void. . . . If everything was regular, there would be no need of any statute of limitations. If the administrator's deed was valid without such statute, then there would be no need of the statute. Therefore it is evident that the statute was enacted for the purpose of curing administrators' deeds which would otherwise be void." (Pages 249, 251.)

This decision has never been overruled. In the case of Howbert v. Heyle, 47 Kan. 58, 27 P. 116, a guardian's deed was attacked in an action of ejectment. The defects in the proceedings supporting the instrument were held to be mere irregularities, the usual presumptions in favor of proceedings within the jurisdiction of the probate court were indulged, and it was decided that the deed was not vulnerable to collateral attack. The opinion was delivered by the justice who expressed the conclusion of the court in Young v. Walker, supra. That decision was not referred to, but, apparently forgetful of what had been written in the earlier case, the learned judge made incidental use of language from which it might be inferred that the statute of limitations in question would not apply to void sales.

Some inconclusive references to the statute appear in other decisions, and in order that all doubt regarding the matter may be removed a restatement of the court's views, and of the reasons for entertaining them, may be proper.

The probate business of this state has been exposed to administration by unskilled hands. The office is political, the terms short, and ignorance, inexperience, inefficiency and carelessness are likely to register their effects upon the devolution of titles accomplished through probate proceedings. Upon the death of a resident of a county his estate must be settled. His debts must be paid, and his real estate liable for the satisfaction of debts must be sold for that purpose, in the absence of other available assets. In justice to all persons interested land ought to be sold to the highest possible advantage, and this cannot be done unless purchasers have confidence in the security of their titles. Men will not pay for land upon which to found homes unless they are to be protected in the undisturbed enjoyment of the fruits of their enterprise. After a fair purchase has been made upon the faith of an order of sale granted by a court of competent authority, and the purchase-money has been irretrievably distributed among creditors, it would result in the rankest kind of injustice to allow heirs to remain silent for years and then, prompted by some fortuitous circumstance, like the discovery of oil or other mineral in the vicinity of the premises, to claim them. The state itself, as a matter of public policy, is interested in the repose and stability of land titles; in the development and improvement of landed property, which doubtful tenures prohibit; and in the repression of vexatious and speculative litigation. These considerations apply as well to sales made without notice as to those of which the heirs have been legally informed.

A title which is not infirm needs no statute of limitations for its protection. If there be no defects, remedial legislation is superfluous. All the defects which vitiate probate sales must range themselves with one or the other of two classes--those which go to the jurisdiction of the court, and those which are not jurisdictional. The latter class does not render sales void or subject to attack except in a direct manner, by appeal or by statutory proceedings to reverse, vacate, or modify. The time limitations upon such proceedings are found in the provisions of the statutes fixing the period within which appeals may be taken or proceedings in error and the like may be commenced. When such time has elapsed, no matter what the irregularities may be, for all purposes of the law the proceedings are valid, and ejectment against the purchaser will not lie. There is, therefore, no room for the beneficial application of the statute cited except to forefend collateral attacks. Ejectment is a collateral proceeding. (Fleming v. Bale, 23 Kan. 88; Mastin v. Gray, 19 Kan. 458, 466, 467, 27 Am. Rep. 149; Priest v. Robinson, 64 Kan. 416, 420, 67 P. 850.) The basis of the action must of necessity be the absence of some fact essential to probate jurisdiction. The language of the statute, which is plain and unambiguous, clearly applies to such an action, and to limit its operation to sales made upon voidable orders only is to make an unauthorized and unwarranted interpolation.

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