Lake v. Hathaway, 14,942

• Court: United States State Supreme Court of Kansas
• Writing for the Court: JOHNSTON, C. J.:
• Citation: 89 P. 666,75 Kan. 391
• Docket Number: 14,942
• Decision Date: 09 March 1907
• Parties: ETHEL LAKE, as Executrix, etc., et al. v. MARK HATHAWAY et al

89 P. 666

75 Kan. 391

ETHEL LAKE, as Executrix, etc., et al.
v.
MARK HATHAWAY et al

No. 14,942

Supreme Court of Kansas

March 9, 1907

Error from Chase district court; FREDERICK A. MECKEL, judge. Opinion filed March 9, 1907. Reversed.

Judgment reversed.

SYLLABUS

1. EXECUTOR'S SALE--Validity--Collateral Attack. Upon a collateral challenge the validity of a sale of real estate ordered and confirmed by the probate court does not depend upon whether there were irregularities in the proceedings, but upon whether the court had jurisdiction to make the orders.

2. EXECUTOR'S SALE--Rights of Innocent Purchaser at a Valid Sale. The confirmation of a sale made by an executrix in pursuance of an order of the probate court to sell land of the testator to pay the indebtedness of the estate, granted after a hearing had upon due notice, passes the equitable title of the land to an innocent purchaser and entitles him to a deed upon payment or tender of payment of the purchase-price.

3. EXECUTOR'S SALE--Agreement of Heirs Not to Sell--Notice Not Given to Court or Purchaser. The fact that after the sale was ordered, and before it was made, the heirs of the testator, one of whom was the executrix, entered into a contract to settle the indebtedness of the estate without a sale of the real property, which contract was not brought to the notice of the purchaser or to the attention of the court until after the sale was confirmed and the deed approved, did not deprive the court of jurisdiction to confirm the sale nor affect the rights and liabilities of the purchaser.

Madden & Doolittle, and D. E. Rathbun, for plaintiffs in error.

Grisham & Swan, and C. E. Dean, for defendants in error.

OPINION

JOHNSTON, C. J.:

This was a suit to enjoin the delivery of a deed executed by Ethel Lake, as executrix of the estate of Joseph Hathaway, deceased, and to [75 Kan. 392] set aside the orders of the probate court for the sale and confirmation of the sale of land in pursuance of which the deed was executed.

The proceeding was brought by the three sons of the deceased, Mark, Orin, and Edward, and in their petition they alleged that their father died owning real estate in Iowa and Kansas, as well as some personal property. They set forth a will by which the real property in Mills county, Iowa, and Chase county, Kansas, together with some personalty, was given to the three sons, and land in Chautauqua county, Kansas, was devised to Ethel Lake, who was the only daughter of the deceased. In it was the provision that, "there being some encumbrance on the land in both counties last above mentioned, it is [89 P. 667] my desire that the lands in Chase county be sold and the encumbrance on the Mills county farm be paid, and the remainder of the proceeds of said land be equally divided between Mark, Orin, and Edward."

It was further alleged that the will was probated in Chautauqua county, where Joseph Hathaway died, and that after filing a certified copy of the will in Chase county, Kansas, the executrix applied to the probate court of that county for permission to sell the Chase county land for the payment of debts, as provided for in the will, and that on December 5, 1904, an order authorizing the sale was made. It was also alleged that before the sale, and on January 23, 1905, Ethel Lake went to Iowa and entered into a contract with her brothers making provisions for the payment of the debts so that a sale of any of the real property devised would be...