Robbins v. Boulware

• Decision Date: 20 June 1905
• Parties: ROBBINS, Appellant, v. BOULWARE
• Court: Missouri Supreme Court

88 S.W. 674

190 Mo. 33

ROBBINS, Appellant, v. BOULWARE

Supreme Court of Missouri, Second Division

June 20, 1905

Appeal from Clark Circuit Court. -- Hon. E. R. McKee, Judge.

Affirmed.

Berkheimer & Dawson for appellant.

(1) The administrator's sale was void. No petition for the order of sale was ever presented to the probate court. The pretended petition presented was the same as no petition and was not legal and was null and void as the same was not sworn and subscribed to, and no jurat affixed, and no seal affixed. Sec. 147, R.S. 1899; Jarvis v. Russick, 12 Mo. 63; Bompart v. Lucas, 21 Mo. 598; Pryor v Downey, 50 Cal. 388. (2) The statute is mandatory, in that it provides that such notice shall be published for four weeks in some newspaper in the county in which the proceedings were had before the term of court at which such order will be made. Young v. Downey, 145 Mo. 250; Hutchison v. Shelley, 133 Mo. 400; Cunningham v Anderson, 107 Mo. 371; Sibley v. Affle, 16 N.Y 180; Pardobn v. Devire, 23 Ill. 572; Rutliff v. Magee, 165 Mo. 467; Maxwell v. Barnes, 59 S.W. 1067; Munday v. Leeper, 120 Mo. 417; Wiggins v. Lowering's Adm'r, 9 Mo. 262; Montelius v. Sarpy, 11 Mo. 237; Blackwell v. Ridenhour, 13 Mo. 125; Bryan v. Munday, 17 Mo. 556; Russell v. Croy, 164 Mo. 69; 1 Black on Judgments, sec. 220. This notice itself which is a part of the judgment and the judgment can be impeached collaterally. 1 Black on Judg., 263; Cloud v. Inhabitants of Pierce City, 86 Mo. 357; Crow v. Meyersieck, 88 Mo. 415; McClanahan v. West, 100 Mo. 321; Johnson v. Baker, 38 Ill. 98; Frances v. Evans, 90 Mo. 74; Dow v. Chandler, 85 Mo. 245; In re Aurthy, 37 N.W. 449; Tappan v. Dayton, 51 N.Y. Eq. 82; In re Zech Estate, 15 Pa. Co. Ct. Rep. 622. In this case the publication commenced on Friday, January 11, 1889, and ended on Friday, February 1, 1889, and was not a compliance with the statute, for there were only twenty-one days from the first publication to the last publication; and further, the proof of publication was not subscribed to, examined or sworn to by either editor of the newspaper. Young v. Downey, 150 Mo. 250; Russell v. Croy, 164 Mo. 69; Davis v. Robinson, 70 Tex. 394; Longhridge v. City of Huntington, 56 Ind. 255; 1 Elliott's General Practice, 450; Harness v. Cravens, 126 Mo. 233; Granger v. Judge, 44 Mich. 384; Brownville v. Dyer, 7 Bush (Ky.) 505; Ratliff v. Magee, 165 Mo. 461; Wilson v. Railroad, 108 Mo. 596; Charles v. Morrow, 99 Mo. 638; Gibson v. Roll, 30 Ill. 172; Valle v. Fleming, 19 Mo. 455; Agan v. Shannon, 103 Mo. 661; State ex rel. v. Tucker, 32 Mo.App. 620. (3) The vested rights that the widow and minor children had under the law of 1865 was not taken away by homestead law of 1875. Art. 2, sec. 15, Constitution; Arnold v. Willis, 128 Mo. 145; Ex parte Bethurum, 66 Mo. 549; Marshall v. King, 24 Miss. 85; Gladney v. Sydnor, 172 Mo. 318; Calder v. Bull, 3 Dall. (U.S.) 386; 6 Am. and Eng. Ency. Law (2 Ed.), 956; Leete v. Bank, 115 Mo. 184; Bartlett v. Ball, 142 Mo. 28; Clay v. Mayr, 144 Mo. 380; Cranor v. School Dist., 151 Mo. 125; In re Flukes, 157 Mo. 131. (4) Affidavit is not good unless the jurat of the officer is affixed. O'Bryan v. Langley, 59 S.W. 523; Knight v. Elliott, 22 Minn. 551; Jackson v. Stites, 3 Caines 128; Shortle v. Stockton, 7 Watts 526; Milner v. State, 24 N.E. 156; Metcalfe v. Presscott, 10 Mont. 283; State ex rel. v. Cardes, 58 Mo. 771; Lederer v. Railroad, 38 Wis. 244; Doty v. Boyd, 24 S.E. 59; Tunis v. Withron, 77 Am. Dec. 117. Neither is there any seal attached, and there is no attempt to cure same by parol evidence. The jurat must be signed by an officer authorized to administer an oath. State Bank v. Hitchcliffe, 4 Ark. 444; Calvert v. McHaughton, 2 Mich. N.P. 8; Morris v. State, 2 Tex.App. 502; Jackson v. Stiles, 3 Caines 128; Waples v. Hicks (Bright.) N.P. 56; Lederer v. Railroad, 38 Wis. 244.

T. L. Montgomery and W. M. Boulware for respondent.

(1) The order of publication was published January 11, 18, 25, February 1st, the first day of the term of court was February 11th, hence the publication appeared thirty-one days before the first day of the term of court and was a sufficient, valid and legal publication as construed by this court. Sec. 148, R.S. 1879; Langston v. Canterbury, 173 Mo. 122; Young v. Downey, 145 Mo. 250; Young v. Downey, 150 Mo. 317; Russell v. Croy, 164 Mo. 90; Ratliff v. Magee, 165 Mo. 468. If there were no affidavit attached to the petition, this is not such a jurisdictional fact as would render the proceedings void and subject to collateral attack. Castleman v. Relfe, 50 Mo. 587; Sloan v. Mitchell, 84 Mo. 546; Rugle v. Webster, 55 Mo. 246; Wilkerson v. Allen, 67 Mo. 508. In other jurisdictions it has been held that the omission of the affidavit to the petition will not render the proceedings void or vulnerable on collateral attack. 19 Ency. Pl. & Pr., 878; McCoy v. Ayers, 2 Wash. Ter. 203; Coon v. Fry, 6 Mich. 506; Overton v. Cranford, 7 Jones L. (N. Car.) 415; Trumble v. Williams, 18 Neb. 144; Kleinecke v. Woodward, 42 Tex. 311; Myers v. Davis, 47 Iowa 329. (2) The notice of sale was published in four issues of the paper, and but twenty-two days before the date of the sale, and was irregular, but the same is not jurisdictional and cannot be collaterally attacked in this proceeding, and does not render the deed void. Sec. 164, R.S. 1879; McNair v. Hunt, 5 Mo. 301; Jackson v. McGruder, 51 Mo. 55; Curd v. Lackland, 49 Mo. 453; Evans v. Snyder, 64 Mo. 516; Draper v. Bryson, 17 Mo. 71; Young v. Schofield, 132 Mo. 668; Hauck v. Cross, 67 Mo. 155; Harness v. Cravens, 126 Mo. 260; Mitchell v. Nodaway Co., 80 Mo. 257; Evans v. Robberson, 92 Mo. 192; 2 Freeman on Executions (2 Ed.), sec. 286. (3) The proof of the advertisement of the notice of sale of the real estate was subscribed and sworn to by Christy & Waggener, publishers of the paper, in due and regular form, and technically complies with the statute prescribed for printers' or publishers' affidavit in such matters and is informal and irregular but does not render the proceedings void leading up to the administrator's deed. Sec. 319, R.S. 1879; Railey v. Guinn, 76 Mo. 271; Voorhees v. Bank, 10 Peters 193; Moore v. Wingate, 53 Mo. 40. (4) The legal and regular publication of notice to the heirs and parties in interest to appear and show cause, if any, why the land should not be sold and the order regularly made, as in this case, brought all parties in interest into court up to and including the approval of the sale which was ordered by the probate court May 25, 1889. This approval and order was a final judgment from which any and all parties in interest could have perfected an appeal, including the appellant, and having failed to appeal, the record is final and cannot be attacked collaterally as appellant contends can be done in this case. The irregularities, if any, are cured by said final judgment; the judgment of the probate court, the same as the judgment of the circuit court, cannot be attacked in this proceeding, and is final and conclusive upon the parties. 2 Woerner's Law of Administration (1 Ed.), secs. 478, 488; vol. 1, sec. 145; Wolf v. Robinson, 20 Mo. 460; Camden v. Plain, 91 Mo. 129; Sims v. Gray, 66 Mo. 616; Johnson v. Beazley, 65 Mo. 250; Henry v. McKerlie, 78 Mo. 416; Bray v. Adams, 114 Mo. 491; Reed Brothers v. Nicholson, 158 Mo. 631; Covington v. Chamblin, 156 Mo. 587; Price v. Real Estate Ass'n, 101 Mo. 116; Noland v. Barrett, 122 Mo. 187; Rogers v. Johnson, 125 Mo. 214; Murphy v. De France, 105 Mo. 70; Long v. Mining & Smelting Co., 68 Mo. 422; Snyder v. Coleman, 72 Mo. 568. (5) The land was sold subject to the homestead rights of the widow, Mary A. Brown, and the title passed to the purchaser subject to her life interest. R.S. 1879, sec. 2693; Roland v. Vesper, 67 Mo. 727; Keene v. Wyatt, 160 Mo. 3.

FOX, J Burgess, P. J., not sitting.

OPINION

FOX, J.

Appellant has filed an abstract of the entire record in this cause. In the brief, however, there is no detailed statement as to the contents of the abstract, but we find, after a careful consideration of the record and a verification of it, that the respondent has made a fair statement of the general outlines of this cause, and with some modifications we have adopted it.

This is an action in ejectment brought by plaintiff, now appellant, against the defendant, now respondent, to recover a five-eighths interest in and to 49.5 acres in the northwest quarter of section fifteen, township sixty-three north, range six west, situate in Clark county, Missouri.

It is admitted and agreed by counsel that the common source of title is William N. Brown. That he died on the thirty-first day of December, 1877, intestate, seized of the land, and that he left as his heirs at law his children, Newton A. Brown, Daniel E. Brown, Henry B. Brown, Rhoda Davis, Nettie Bash, Minie Barclay, Anna B. Robbins. That he left his widow, who died July 26, 1891. That $ 100 is the reasonable rental value of the premises per year. That the defendant has been in the possession of this real estate since March 1, 1896.

William N. Brown, the common source of title, died intestate December 31, 1877, leaving surviving him his widow, Mary A. Brown, and appellant, and other heirs at law. That thereafter, at the May term, 1878, of the probate court of Clark county, Henry D. Brown was duly appointed administrator of said estate, gave bond and entered upon the discharge of his duties as such up to the February term, 1888, of said court, when upon the application to said court by A. D. Lewis, a creditor of said estate, by petition, upon due notice to said Henry D. Brown, such proceedings were had in said court that letters theretofore granted to him were by the said court revoked on account of his...