Noland v. Barrett

• Decision Date: 24 May 1894
• Citation: 26 S.W. 692,122 Mo. 181
• Parties: Noland et al., Appellants, v. Barrett et al
• Court: Missouri Supreme Court

26 S.W. 692

122 Mo. 181

Noland et al., Appellants, v. Barrett et al

Supreme Court of Missouri, Second Division

May 24, 1894

Appeal from Jackson Circuit Court. -- Hon. John W. Henry, Judge.

Affirmed.

H. C McDougal and C. F. Moulton for appellants.

(1) The court records and deeds were read in evidence without objection, and, by the declaration refused, the court below was properly asked to test and determine their legal effect. Bartlett v. O'Donoghue, 72 Mo. 563; Pettis Co. v. Gibson, 73 Mo. 502. (2) The appraisement made two days before and filed with the petition for sale of the real estate in question, was required by statute. (R. S. 1879 sec. 147 -- present sec. 146.) But there was no appraisement after the order and before the sale. The latter was affirmatively required by our present section 161 (R. S 1879, sec. 162). For the want of such second appraisement, the sale was void and the trial court erred in refusing plaintiffs' declaration. Strause v. Drennan, 41 Mo. 289; Bank v. Evans, 51 Mo. 335; Collier v. Stanbrough, 6 How. (U.S.) 20; Smith v. Cockrill, 6 Wall. (U.S.) 756; French v. Edwards, 13 Wall. (U.S.) 506; Grantly v. Ewing, 3 How. (U.S.) 707; Phillips v. Righten, 9 Rob. (La.) 531; Reynolds v. Wilson, 60 Am. Dec. 753; Spratt v. Reid, 3 G. Greene, 497; Barton v. Emerson, 4 G. Greene, 393; Tyler v. Williamson, 27 Ind. 450. (3) The continuance of the sale by the administrator from February 14 to February 19, 1881, rendered the sale and deed absolutely void. This postponement appears upon the faces of the report of sale and of the deed under which defendants claim, and the court erred in refusing plaintiffs' declarations of law. Valle v. Fleming, 19 Mo. 454; Jones v. Carter, 56 Mo. 403; Ladd v. Shippie, 57 Mo. 523; Wolf v. Ward, 104 Mo. 127; Thomas v. LeBaron, 8 Met. (Mass.) 355; Curley's Succession, 18 La. Ann. 728; Blodgett v. Hitt, 29 Wis. 168; Mountain v. Purdy, 11 Minn. 384; Garner v. Bostick, 15 La. Ann. 697; Hobart v. Upton, 2 Sawy. C. C. 302; In re Hartley, 37 N.W. 506; Wartley v. Johnson, 52 Am. Dec. 399; Gilstrap v. Moore, 59 Am. Dec. 254; Morton v. How, 41 Am. Dec. 607; Clements v. Henderson, 48 Am. Dec. 216; Reynolds v. Wilson, 60 Am. Dec. 753; Gibson v. Roll, 83 Am. Dec. 181; Townsend v. Tallant, 91 Am. Dec. 617; Corwin v. Merritt, 3 Barb. 341; Monahan v. Vandyke, 27 Ill. 155.

G. F. Ballingal and Botsford & Williams for respondents.

(1) The confirmation and the deed executed in conformity to the confirmed sale cure all irregularities in the proceedings subsequent to the order of sale, and such order confirming the sale is a binding judgment which can not be collaterally attacked, except for want of jurisdiction or fraud. Anthony v. Rice, 110 Mo. 230; Hughes v. McDivitt, 102 Mo. 82; Price v. Real Estate Association, 101 Mo. 107; Camden v. Plain, 91 Mo. 117; Fenix v. Fenix, 80 Mo. 33; 12 Am. and Eng. Encyclopedia of Law, pp. 219-221, and cases cited; 2 Woerner's Administration Law, sec. 478, and cases cited; 5 Am. and Eng. Encyclopedia of Law, p. 304, and cases cited; Bobb v. Barnum, 59 Mo. 398, 399; Rorer on Jud. Sales [2 Ed.], sec. 351, and cases cited. (2) The administrator was authorized by the order of the probate court to sell the real estate in controversy, either at public or private sale. The power to sell at public sale, after due notice of the time, terms and place of sale, included the power in the administrator, regularly, on due notice, to adjourn the sale to a different time, without readvertising the sale, when in his discretion, fairly exercised, it should be deemed by him necessary to do so, in order to prevent a sacrifice of, and to obtain a fair auction price for, the property to be sold. Judge v. Booge, 47 Mo. 551; Davis v. Hess, 103 Mo. 37; Richards v. Holmes, 18 How. (U.S.) 147; 12 Am. and Eng. Encyclopedia of Law, pp. 217-218, and cases cited; 2 Woerner's Adm. Law, secs. 477, 478, and cases cited; Rorer on Jud. Sales [2 Ed.], sec. 104, and cases cited. (3) The omission of the administrator, Moore, to readvertise the land, after his adjournment does not vitiate the title in the hands of respondents, the evidence showing a fair sale at full value, with the utmost good faith on the part of the administrator. Draper v. Bryson, 17 Mo. 83; Curd v. Lackland, 49 Mo. 453; Norris v. Howe, 15 Mass. 175; Pier v. Storm, 37 Wis. 251, 252. (4) Even if it should be held that the sale at the adjournment, on February 19, 1881, was invalid as a public sale, still as the administrator had full power to sell at private sale, without notice, and as the property sold for three-fourths of its appraised value, the sale is unquestionably good as a private sale, after confirmation by the court, on a report showing all the facts and circumstances attending the adjournment and sale on that day. R. S. 1879, secs. 165, 166; Hand v. Motter, 73 Mo. 459, 460.

OPINION

Gantt

Gantt, P. J.

This is an action of ejectment by the widow and heirs at law of William H. Twyman, late of Jackson county, against William T Barrett, the tenant of Mrs. Catherine E. Donnell, and Mrs. Donnell, and her husband, for two hundred and three acres of land in Jackson county, to wit: East half of the southwest quarter, and west half of southwest quarter, except fifty acres off of the north end of the last mentioned tract, all in section 7, township 49, range 32, west; and all the land east of the Big Blue river in the east half of section 12 in township number 33, containing fifty acres; and the southwest quarter of section 7, township 49, range 32, and ten acres off the north side of the southwest quarter of section 7, township 49, range 32, containing in all two hundred and three acres. The ouster was laid March 1, 1888.

The answer is a general denial, and a plea of the statute of limitations as to one hundred acres of the land, and an averment of title to all of the land in Mrs. Donnell. The verdict and judgment was for the defendants in the court below, and since this appeal the plaintiffs have abandoned in this court any claim to one hundred acres, being all the land east of the Big Blue river in section 12, township 49, range 33, and fifty acres off the north end of the west half of the southwest quarter of section 7, township 49, range 32.

Mrs. Elizabeth Heald is the widow of William H. Twyman, deceased; said Twyman died in March, 1874, seized and possessed of all the lands sued for, in fee simple; he left five children, plaintiffs in this case. The defendants admitted possession, and denied all other allegations.

The defendants, to maintain their defense, proved the following facts:

First. That soon after the death of William H. Twyman, deceased, and on March 25, 1874, one Jesse Noland was duly appointed as the administrator of his estate, and, as such, sold for the payment of debts, to said defendant Mack S. C. Donnell, on June 8, 1874, one hundred acres of said land, being the same one hundred acres described in the answer herein, and there claimed by defendant under the ten years' limitation.

Second. That upon the acceptance of the resignation of said Noland as such administrator, and on November 16, 1878, Milton Moore, then public administrator of Jackson county, was ordered to, and did, take charge of said estate, as the administrator de bonis non thereof.

Third. That on August 11, 1880, said Milton Moore, as such administrator de bonis non, filed in the probate court, his petition, "for the sale of the whole of the real estate and of the personal estate with its appraised value," and that an order of publication was then duly entered thereupon.

Fourth. That at the next term and on November 13, 1880, upon proof of publication, said probate court ordered a sale of said real estate, "at public or private sale," and if the former, then the court "further orders that said administrator give notice of the time, terms and place of sale as by law required," etc.

Fifth. That under the order of sale made at said November term, 1880, the administrator, Milton Moore, advertised the one hundred and three acres of land, remaining in dispute in this case, for sale at public auction, on February 14, 1881, and on that day he appeared at the courthouse in Independence to make said sale, and offered said property for sale under the terms of said order, but, to use the language of his report of sale, "a snowstorm of unprecedented violence had been prevailing throughout the country, rendering many of the public roads almost impassable, and it was represented to him that, owing to the inclemency of the weather and the state of the roads, many persons who desired to bid for said property could not be present, among the number, the widow of the deceased, and deeming it for the best interest of the creditors of the estate and for the estate itself, he adjourned said sale until Saturday, the nineteenth day of February, 1881, then to be made in pursuance of said order, notice and adjournment, and then continued said sale to the nineteenth of February, 1881, and again exposed said property to the highest and best bidder, and at said sale John McMahon, Esq., was the best bidder, for $ 1,200, and it was sold to him for that sum." This report was duly verified and was accompanied by the appraisment made August 9, 1880, and was duly approved by an order of record by the probate court of Jackson county.

On May 14, 1881, said administrator made his administrator's deed to said McMahon, in which said appraisement is recited as made on August 9, 1880, and that "said sale was adjourned from February 14 to February 19, owing to the inclemency of the weather and impassable condition of the roads and want of bidders."

It was shown aliunde the report and deed, that, on Saturday, Mrs. Twyman, Mr. Hale, her father, and Mr. Hale, her brother, were...