Smith v. Black

• Decision Date: 23 December 1910
• Citation: 231 Mo. 681,132 S.W. 1129
• Parties: SMITH v. BLACK et al.
• Court: Missouri Supreme Court

132 S.W. 1129

231 Mo. 681

SMITH v. BLACK et al.

Supreme Court of Missouri, Division No. 1.

December 23, 1910.

1. EVIDENCE (§ 25)—JUDICIAL NOTICE.

A petition by an administrator for the sale of land described as located in a certain part of a designated section, township, and range, sufficiently shows that the land is situated in a specified county to give the probate court thereof jurisdiction over the land, as courts will take judicial notice of land descriptions in government surveys and of the political subdivisions of the state.

2. EXECUTORS AND ADMINISTRATORS (§ 39).

Under the statute the real estate of a decedent descends to his heirs, and the probate court has no administrative jurisdiction over it, except to lease or sell it to pay debts.

3. EXECUTORS AND ADMINISTRATORS (§ 336)— SALE OF REAL ESTATE—JURISDICTION—PETITION.

The filing in the probate court of a petition by an administrator for the sale of real estate to pay debts gives the court jurisdiction over the real estate, and the omission of the administrator to file with the petition the inventory, appraisement, lists and accounts of the estate, as required by the statute, does not deprive the court of jurisdiction nor render the sale void.

4. JUDGMENT (§ 489)—COLLATERAL ATTACK.

Where the Constitution or statute absolutely prohibits a court from doing a particular act, a judgment of the court in violation thereof is void for want of jurisdiction and may be collaterally attacked.

5. JUDGMENT (§ 489)—COLLATERAL ATTACK.

Where the Constitution or statute authorizes a court to do a particular thing, but prohibits doing it until certain other things specified are performed, or where the power of the court to act is subject to specified limitations, a judgment of the court rendered without the performance of the specified things, or contrary to the limitations imposed, is not void for want of jurisdiction, but is voidable only, and, unless corrected by timely motion or appeal, becomes valid, and not subject to collateral attack.

6. EXECUTORS AND ADMINISTRATORS (§ 383)— SALE OF REAL ESTATE—COLLATERAL ATTACK.

Where the probate court acquired jurisdiction over the real estate of a decedent by the filing of a petition by the administrator for the sale thereof to pay debts, the mere fact that the administrator sold the land at private sale for less than three-fourths of its appraised value, in violation of Rev. St. 1879, § 166, did not affect the jurisdiction of the probate court, and its erroneous judgment approving the sale was not void, and could not be collaterally attacked.

7. JUDGMENT (§ 475)—VALIDITY — PRESUMPTIONS.

Where no appeal was taken from an order of the probate court entered within its jurisdiction, and it was not set aside or modified, the presumption of regularity and validity accorded to judgments of courts of general jurisdiction must be accorded to it.

Appeal from Circuit Court, Butler County; J. C. Sheppard, Judge.

Action by Ida C. Smith against David H. Black and another. From a judgment for defendants, plaintiff appeals. Affirmed.

This is a suit in ejectment for the recovery of the possession of a certain 40 acres of land, situate in Butler county, state of Missouri. The judgment was for the defendants, and the plaintiff appealed.

The petition was in the usual form. The answer consisted of a general denial, and a plea that defendant, Black, purchased the land in good faith for a valuable consideration, and prayed that the title to the same be quieted in him. The reply was a general denial. The facts of the case are undisputed, and are as follows:

William Henley was the common source of title, who died seised of the land in controversy in the year 1871 or 1872. The plaintiff, then a minor of 11 years of age, was the only heir at law of said Henley. The defendant, Black, claims title to said land through mesne conveyances from said Henley under a sale thereof by the administrator of his estate by order of the probate court of Butler county, based upon the following petition presented to said probate court by the administrator, asking for an order of sale of the real estate for the payment of debts of the deceased, to wit (formal parts omitted).

"In the Matter of the Estate of William Henley, Deceased. Josiah Harper, administrator of the estate of the said William Henley, deceased, comes and prays the Honorable the Probate Court of said county to order a sale of the real estate of the said William Henley, deceased, or so much thereof as may be sufficient to pay the debts of the said deceased, and states to the court that he has sold the personal estate of the deceased, as appears by the sale bill already filed, and that the proceeds of said personal estate, goods and chattels, and payments of debts for said estate, were as follows, to wit: As shown by my settlements filed in this court, in my hands, as shown by my last settlement, $425.35, which consists of an unavailable note and an erroneous charge in said last settlement, leaving nothing available in my hands. And there remains unpaid allowances of court as follows:

                1 allowance S. R. Harviell.... $57 90
                1 allowance Cohen.............  20 31  $78 21
                                               ______________
                

"It is further stated by the administrator that of debts due to the deceased I think there will be realized not more than the sum of anything, so that there will not be found in the hands of the administrator sufficient to pay the debts of the deceased, without selling the whole or part of the real estate inventoried, as follows: N. E. of N. E. sec. 11, township 24 north, range 6 east, and other land, in all 80 acres; and recommends that the same be sold for the payment of debts due by the deceased, or so much of the real estate as may be sufficient for that purpose. All of which is respectfully submitted."

After said petition was duly considered by the probate court, it duly appointed three disinterested freeholders to appraise the land. They took the prescribed oath, viewed and appraised the land at the sum of $120, and made a report thereof in proper form to the court. Thereupon, the court ordered the administrator to sell the land at private sale. In pursuance to that order, the administrator sold the land on the 17th day of March, 1884, to the Poplar Bluff Lumber Manufacturing Company for the sum of $80. This sale was reported to the court, and it was by the court confirmed. In due time the administrator executed a deed to the purchaser. The land was wild and uncultivated, and was in the actual possession of no one until about three years prior to the institution of this suit, at which time the defendant, Black, took possession thereof.

Abington & Phillips and Oldfield & Cole, for appellant. David W. Hill, for respondents.

WOODSON, J. (after stating the facts as above).

1. There are but two propositions presented by this record for determination: First, that the petition filed by the administrator asking the probate court for an order to sell the land to pay debts did not properly describe the land, and for that reason the probate court acquired no jurisdiction over the land, and for that reason the order of sale was void, and, consequently, no title passed by virtue of the sale made by the administrator; and, second, that the land was sold, at private sale, for less than three-fourths of its appraised value, which was in violation of section 166, Rev. St. 1879. We will consider these two propositions in the order stated.

As regards the first, it will be observed from reading the petition, praying for the order of sale, that it fails to state in express words that the land was located in Butler county and state of Missouri. Counsel for appellant contend that this omission is absolutely fatal, and the probate court for that reason acquired no jurisdiction of the subject-matter, and, consequently, the order of sale is absolutely void, and no title was conveyed to the Poplar Bluff Lumber Manufacturing Company by virtue of said deed. In our opinion that contention is untenable. The petition describes the lands as being the N. E. ¼ of the N. E. ¼ of section 11, township 24, range 6 east, and other land; in all 80 acres. That description is sufficient to show that the land was situate in Butler county. In the discussion of that question, Judge Valliant, in Myher v. Myher, 224 Mo., loc. cit. 637, 123 S. W. 807, in speaking for the court, clearly and tersely said: "But even without that oral testimony we think the description contained in the will is sufficient to show that the land lies in Adair county, Missouri. This court takes judicial cognizance of land descriptions in the government surveys, and we also take judicial cognizance of the political subdivisions of the state. We know that sections 13 and 14, township 62, range 16 are in Adair county. It is argued that those numbers of sections, township, and range may be found in other counties in other states; that may be, but we have no judicial cognizance of such matters in other states, and even if the fact were proven, we would not go abroad to hunt for such a fact for the purpose of rendering uncertain a description which is certain enough when applied to land within our purview. This point was practically so decided in Long v. Wagoner, 47 Mo. 178."

2. The second insistence of counsel for appellant present a more serious proposition, to wit, that the sale is void for the reason that the administrator sold the land in question at private sale for a sum less than three-fourths of its appraised value, in violation of section 166, Rev. St. 1879. That section, so far as material, reads as follows: "No real estate sold for the payment of debts shall be sold at private sale for less than three-fourths of its appraised value." This question has never been directly passed upon by this court, or by either of the Courts of Appeal, so far as I have been able to ascertain. We must, therefore, approach it more upon...