Pohlenz v. Panko
| Decision Date | 06 May 1921 |
| Docket Number | No. 21294.,21294. |
| Citation | 182 N.W. 972,106 Neb. 156 |
| Parties | POHLENZ ET AL. v. PANKO ET AL. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
When an administrator is given license in the district court to sell land for the payment of debts, and the court orders him to give a bond to account for the proceeds of the sale (under section 1453, Rev. St. 1913), after the sale is confirmed, from which no appeal is taken, and the property is in the hands of a goodfaith purchaser, an objection that the sale bond was insufficient, because the penalty of the bond appears to have been left blank, will not invalidate the sale, where the bond may be reformed in equity and a remedy had thereon.
Where a notice of sale, given by the administrator, was published in a weekly paper for one day of each of the three weeks next preceding the sale, under section 1461, Rev. St. 1913, requiring publication “for three weeks successively next before such sale,” even though the first publication was not made a full three weeks prior to the sale and is not, therefore, in strict compliance with the statute, the irregularity will not defeat the jurisdiction of the court.
Such defective notice of sale, where no prejudice is shown to have resulted, will not be sufficient ground to set the sale aside on collateral attack by the heirs in an action brought within the five-year statute of limitations. Rev. St. 1913, §§ 1485, 1486.
The bond required by section 1453, Rev. St. 1913, to be given by an administrator before a sale is made, is not jurisdictional, since the matter of requiring such bond before sale is left to the judicial determination of the court, and is only to be given when the court concludes that the sale will bring more than sufficient to pay debts.
Where claims are filed in an administration proceeding in the county court, the fact that the county court has failed to enter a formal order allowing claims is not fatal to a proceeding in the district court for license to sell lands to pay debts of the estate.
When the district court in such a proceeding grants a license to sell property which is a homestead, the sale will not be declared void after a confirmation, from which there has been no appeal, when it appears that the property was of greater value than $2,000, if the record shows no claim of homestead, or objection of any kind on that ground, was made in the proceeding, though the court may have committed error in not segregating the homestead and in not ordering $2,000 preserved to the owners, in lieu of the homestead.
Appeal from District Court, Johnson County; Raper, Judge.
Action by Floyd Pohlenz and others against Matthoias Panko and others. From the judgment, defendant named appeals, and plaintiffs cross-appeal. Reversed and dismissed.
Sorensen & Bollen, of Lincoln, for appellant.
Hazlett, Jack & Laughlin, of Beatrice, for appellees.
Action brought by the heirs of George Pohlenz to quiet title in them to certain land as against the defendant, whose title depends upon an administrator's deed.
In 1895 George Pohlenz died. The administrator of his estate in 1896 applied to the district court for, and was given, a license to sell the land in question for the purpose of paying the debts of the estate. In pursuance of that license, the property was sold for the amount of $2,250 on August 15, 1896, and it is through that conveyance that the defendant claims title. The lower court held against the plaintiffs on all objections made against the validity of the administrator's sale, except one, that it was the sale of a homestead, and on that proposition the court found that, in its opinion, the land could, at the time of sale, have been divided and the homestead interest set apart, and that the remainder only of the land in excess of that interest should have been sold. On that ground the court held the deed void as to that portion of the land which the court found might have been set apart in 1896 as a homestead, but held that the sale was valid as to the remainder of the land, and made an apportionment of the land between the plaintiffs and the defendant accordingly.
Two of the heirs, plaintiffs here, became of age within five years prior to the commencement of this suit, and the special five-year statute of limitations (Rev. St. 1913, §§ 1485, 1486) does not, as to them, apply.
By section 1487, Rev. St. 1913, it is provided that administrator's sales shall not be set aside for irregularities in the proceedings, where it appears that (1) the administrator was licensed by a district court having jurisdiction; (2) that he gave bond, approved by the judge, in case bond was required; (3) that he took oath; (4) that he gave statutory notice of the time and place of sale; (5) that sale was made according to notice and confirmed, and that the property is held by a good-faith purchaser.
It is insisted by the plaintiffs that the notice of sale and the bond to account for the proceeds of the sale were not strictly in accordance with the statute, and that, at least as to the two plaintiffs against whom the five-year statute of limitations has not run, the sale should, for those reasons, be held void.
The statute (Rev. St. 1913, § 1487), however, does not direct that a sale shall be set aside whenever it shall appear that any one of the five conditions enumerated has not been complied with. It provides only that, whenever it does affirmatively appear that those conditions have been met, then no irregularity in the proceeding shall be sufficient to invalidate the sale.
Though the statute is open to the inference that a sale may be set aside for irregularities, in a case where it appears that any of the five conditions of the statute have not been met, the statute is not mandatory that a sale shall be set aside for such technical omission alone, and, where the particular defect or omission is one of those which are not jurisdictional, it seems to us a sale should not be set aside unless the defect in or omission to comply with one of the five conditions affects injuriously the substantial rights of the parties interested.
The notice of sale which the plaintiffs attack, in this case, was given under section 1461, Rev. St. 1913, which requires that “notice of the time and place [of sale] * * * shall be published in a newspaper, * * * for three weeks successively next before such sale.” One publication was made in a weekly paper on July 30, 1896, one, a week following, and one, a week following that. Sale was had according to the notice one day after the last publication, August 15, 1896. Three weeks, therefore, did not expire between the first publication and the date of sale.
Under our decisions, a statute providing that publication be made “for” three weeks is interpreted to mean that the notice shall consume a full three weeks' period of time before it is complete, and, though publication on one day, respectively, of each of the three weeks in a regular issue of a weekly paper is sufficient publication, still, it is held, three weeks must elapse after the first publication before the notice will be deemed to be complete. State v. Cherry County, 58 Neb. 734, 79 N. W. 825;State v. Weston, 67 Neb. 385, 93 N. W. 728.
On the other hand, where a statute requires publication in a newspaper “three weeks” and the word “for” is omitted, it is held that a regular publication in a weekly paper on one day of each of the three weeks is sufficient, and that notice is complete upon distribution of the last paper, though three full weeks have not elapsed since the first publication. Alexander v. Alexander, 26 Neb. 68, 41 N. W. 1065;Davis v. Huston, 15 Neb. 28, 16 N. W. 820;Claypool v. Robb, 90 Neb. 193, 133 N. W. 178;In re Estate of Johnson, 99 Neb. 275, 155 N. W. 1100;State v. Hanson, 80 Neb. 724, 115 N. W. 294.
The distinction is strictly technical, but applying the rule established, the publication of notice in this case is not in strict accord with the provisions of the statute.
[2] Unless the notice of sale is jurisdictional, we are unable to see how any prejudice could have resulted by a failure to postpone the sale for a week after the last publication. By a postponement of the sale for one week, no further notice would have been given, no additional issues of the newspaper would have been distributed, and in no manner does it appear that the sale would have been affected in any particular. Such an irregularity would, in collateral attack, not be sufficient to invalidate the sale. Matheson's Heirs v. Hearin, 29 Ala. 210; Saltonstall v. Riley, 28 Ala. 164, 65 Am. Dec. 334; Moffitt v. Moffitt, 69 Ill. 641;Bland v. Muncaster, 24 Miss. 62, 57 Am. Dec. 162;Haight v. Hayes, 3 Neb. (Unof.) 587, 92 N. W. 297; 18 Cyc. 808.
With regard to judicial sales generally, it is stated in 24 Cyc. 21:
“The fact that proper notice of a judicial sale has not been given is always a sufficient ground for refusing to confirm or setting aside the sale; but according to the weight of authority it is a mere irregularity also, which renders the sale voidable only and not void.”
See, also, Bresee v. Preston, 91 Neb. 174, 135 N. W. 544.
[3] It seems clear to us that the notice is not jurisdictional. The court acquired jurisdiction by the administrator's application to sell and the giving of the statutory notice thereon to the parties interested. The administrator was licensed and took oath. Where a notice of sale is given and the sale is fairly conducted, so that no prejudice results, a mere technical failure to strictly follow the letter of the law does not defeat the jurisdiction of the court. A failure to give strict statutory notice should be objected to on confirmation, and the objection protected by appeal.
In the case of Moffitt v. Moffitt, supra, in which it was held that a failure to give a statutory notice did not invalidate the sale, the court said (page 649):
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