Overton v. Johnson

Decision Date31 January 1853
Citation17 Mo. 442
PartiesOVERTON et al., Respondents, v. JOHNSON et al., Appellants.
CourtMissouri Supreme Court

1. A county court has jurisdiction to order a reservation of the personal, and a sale of the real estate of a testator, to pay debts, notwithstanding the testator's will may direct that all his debts shall be paid out of the “personal effects of his estate.” However erroneous the order may be, a sale under it is not void, and cannot be questioned in a collateral proceeding.

2. It seems, that the accounts, lists, inventories and appraisements, which the statute requires to be filed with a petition for the sale of a decedent's real estate, are not necessary to give the court jurisdiction, and that a failure to file them would not render the sale void.

3. The objection that the order of notification to persons interested was made at a time when no term existed by law, and required their appearance at a time when no term could exist by law, will not prevail, unless these defects are shown affirmatively; the statute gives county courts power to change the terms fixed by law.

4. In a proceeding for the sale of a decedent's land, it is not necessary that guardians ad litem should be appointed for minor heirs.

Appeal from Jackson Circuit Court.

Napton and Wood, for appellants. It is well settled that a sale under a judgment of a court having jurisdiction of the person, and of the subject-matter in controversy, carries the title, however erroneous and irregular its proceedings may be. McNair v. Biddle, 8 Mo. Rep. 264. 9 ib. 124. Orphan's courts, or courts having testamentary jurisdiction, by whatever name called, where they are courts of record, and their proceedings subject to revision by the highest appellate tribunals, are fully within the protection of this principle; and a proceeding of such courts in relation to the sale of the lands of a testator or intestate, in states where such sales are permitted by law, is regarded as in rem, and likened to admiralty proceedings, and a sale under their judgments carries the title, if the court has jurisdiction of the subject matter adjudicated on. Grignon's lessee v. Astor, 2 Howard, 335. McNair v. Hunt, 5 Mo. Rep. 309. McPherson v. Cunliff, 11 S. & R. 460. Day v. Kerr, 7 Mo. Rep. 8 Watts, 417. In this case, it was shown that there was a publication according to law. The omission to file the inventories, &c., required by law, does not affect the question of jurisdiction, and consequently cannot shake the title of the purchaser. The final judgment of the court ordering the sale raises the presumption, so far as the subject arises collaterally, that all these preliminaries have been complied with.

A cause is coram judice, whenever the petitioner presents such a case as authorizes the court to deliberate and act. The subsequent movements of the court are the exercise of jurisdiction. Whether the provisions of Overton's will presented any obstacles to the exercise of its jurisdiction, in this case, was a question of fact and law, upon which the court, in the exercise of its jurisdiction, had to pass; and whether decided rightly or otherwise, does not concern the purchaser at the sale. But the court construed the will correctly. The necessity of selling either land or slaves was not within the contemplation of the testator, and he indicates no choice between them.

The second order was a continuation of the first, and not a new proceeding, requiring a second petition, order of publication, appraisement, &c. Huckle and wife v. Phillips, 2 S. & R. 7. 11 S. & R. 429.

Hicks, for respondents. The orders of the county court could not divest the respondents of their property, unless the requisites of the law were substantially complied with. The county courts are courts of limited jurisdiction. They are creatures of the statute, and are authorized by the statute to do certain acts, after certain formalities have been complied with. The pre-requisites of the statute must be strictly complied with before such courts obtain any jurisdiction over the subject matter. Bloome v. Burdick, 1 Hill, 130. Borden v. Fitch, 15 J. R. 121. Bigelow v. Stearns, 19 J. R. 39. Miller v. Martin, 19 J. R. 7. Dakin v. Hudson, 8 Cow. 221. Jackson v. Collins, 3 Cow. 90. Denning v. Corwin, 11 Wend. 647. Messenger v. Kintner, 4 Binney, 97. Smith v. Rice, 11 Mass. 507. Proctor v. Newell, 17 Mass. 91. 6 Wheat. 119. Jackson v. Esty, 7 Wend. 20 Wend. 241. Jackson v. Shepherd, 7 Cow. 88. Williams v. Peyton, 4 Cranch. 6 S. & M. 259. Knox v. Jenks, 7 Mass. Thomson v. Brown, 16 Mass. 174. 5 Pick. 140. 15 Mass. 312. The cases of Jackson v. Robinson, 4 Wend. 436; Jackson v. Crawford, 12 Wend. 533; Perkins v. Fairfield, 11 Mass. 227, and Leavitt v. Harris, 7 Mass. 144, may seem to militate against this doctrine; but, upon close examination, they do not, but are rather confirmatory of it. The presumption that all the pre-requisites of the law have been complied with, certainly does not arise in this case, when, by the appellants' own showing, they have not been. 4 Binney, 105.

The county court had no jurisdiction to order a sale of the land at the February term, 1844. No continuance of the proceeding had been made to that time. Another petition and order and notice were at least necessary to the validity of the sale.

The notice of publication was not sufficient. It notified all persons interested in the estate to appear “on the first Monday of June next” and show cause, &c., but did not state where, or before what court or what term of the court. The statute requires the parties interested to be notified to appear at the next term of the court. Now the law appoints four terms a year, to be holden on the first Mondays in February, May, August and November. The county courts may alter their statute terms by giving such notice thereof as to them may seem expedient; but it does not appear that the county court of Jackson county ever altered the statute terms of holding their courts; the contrary appears from the record in this case. The petition was filed April 4th, and the notice was to appear on the first Monday in June thereafter, and the case was continued until the first Monday in June. Now neither April nor June were statute terms of the court, and the respondents could not be notified to appear at any but the next statute term, nor could the proceeding be initiated at any other than a statute term.

The court had no jurisdiction to order a sale, for the reason that two of the respondents were minors and no guardians ad litem were appointed for them. 4 Binney, 103. People v. Utica Insurance Company, 15 J. R. 379.

The sale was void for the reason that the will of the testator directed his debts to be paid out of his personal property. 1 Coxe (N. J.) Rep. 210. 6 Halst. (N. J.) Rep. 145. Smith v. Rice, 11 Mass. 507. 15 Peters, 111.

GAMBLE, Judge, delivered the opinion of the court.

This was an action for the recovery of the possession of a tract of land, in Jackson county, brought by the plaintiffs as the children of Jesse Overton, deceased, who are here respondents, against Johnson and Dittman, who are the appellants.

The case, as presented on the record, shows the title of the parties to be as follows: Jesse Overton died seized of the premises in controversy, having first made his will, whereby he directed that his debts should be paid out of his personalty, and ordered certain portions of his personal chattels to be sold, and the remainder to be kept on the farm for the use of his wife and children. The real estate was, by the will, to be equally divided among his children when the eldest became of age. The testator left a number of slaves and considerable real estate. The executors presented a petition to the county court, alleging that the personal effects which they were directed by the will to sell, had been sold, and that they were insufficient to pay the debts of the deceased, and praying that the slaves might be reserved from sale, and the real estate sold for the payment of debts. This petition, on its face, professed to state the amount of money collected and distributed, the amount of assets of the estate, the amount of debts allowed against the estate, and also stated that there were other debts not yet allowed, and exhibited a list of the lands belonging to the estate. Upon the exhibition of this petition, the county court, at what is called the April term, made an order directing that all interested in the estate should be notified that, unless they appeared and showed cause to the contrary on the first Monday in June next, an order would be made for the reservation of the slaves and the sale of the real estate, to satisfy the debts of the estate. This order recites that the executors had presented their petition for the reservation of the slaves, and the sale of the real estate, “accompanied by a true account of their administration, a list of debts due to and by said decedent and remaining unpaid, and an inventory of the real estate and the remaining personal estate, with its appraised value, and all other assets in their hands, verified by the affidavit of said executors.” The order further directs, that notice of the application “be published in some newspaper published in this state, for six successive weeks, and this cause is continued until the first Monday in June next.” At a term called the “June term,” the court, on application, continued “the petition of the executors until the first Monday of July next.” At a term called “the July term,” the court, on motion of the petitioners, “continued the cause until the next August term of the court.” At neither of these terms was there any proof of the publication of the notice to the persons interested in the estate. At the August term, an order was made for the reservation of the slaves and the sale of certain portions of the real estate. The execution of the order of sale, thus made, was postponed, by orders of the court, for one or two...

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