Smith v. Callaghan
| Decision Date | 12 June 1885 |
| Parties | SMITH ET AL. v. CALLAGHAN |
| Court | Iowa Supreme Court |
Appeal from Kossuth Circuit Court.
ACTION to quiet title to certain land in Kossuth county. The plaintiffs, George Smith and William Smith, show in their petition that one George Smith, of the state of Illinois died seized of the land; that the plaintiffs became devisees of the land under the will of George Smith, deceased; that one Hunt and one Cowdry were appointed executors in the will that the testator, by his will, authorized and empowered them to sell and convey, for such prices and on such terms as they should deem proper, all or any part of his real estate, and should be required to give only their personal bond as security; that the will was duly probated in Cook county Illinois, and Hunt and Cowdry qualified as executors; that afterwards, in 1870, a certified copy of the will was filed in the circuit court of Kossuth county, Iowa, and Hunt and Cowdry were appointed by the court executors of the will in the county, and qualified by giving their bond as ordered that afterwards, in 1871, they sold and conveyed the land in question to the defendant for the sum of $ 1,000; that the land, however, at that time was worth $ 3,000, and was sold without appraisement, and without the order of the court, and the deed thereof was not approved by the court. The defendant demurred to the petition, and the demurrer was overruled. He elected to stand upon his demurrer, and judgment was rendered against him, as prayed in the petition. He appeals.
REVERSED.
A. F. Call, for appellant.
Geo. E. Clarke, for appellees.
It is claimed by the defendant that under the will the executors became trustees of the land, and had full power to sell and convey the same without an order of court, or its approval of the deed. In the view which we have taken of the case, we do not find it necessary to determine the question. The Eighteenth General Assembly passed an act (chapter 162) entitled "An act relating to conveyances of real estate by foreign executors and trustees, and to amend section 2352 of the Code." This act provides for a sale and conveyance of real estate in this state by foreign executors without an approval of the deed, where the executors are empowered in the will to sell. The same act also provides that conveyances made before that time by foreign executors, shall be legal where the requirements of the act have been complied with. It is undisputed that in the sale in question the requirements of the act were complied with, but the plaintiffs deny that the act had the effect to legalize the sale, because it is said that at the time the act took effect they had a vested right in the land, and that the act itself provides that such right shall not be affected; and, moreover, that it could not be, even without such provision.
It is not to be denied, we think, that they had at one time a right in the land. But that right was subject to the provision of the will that the executors might convert the land into money for their benefit. This is all that the executors have done. The fact of the sale and conveyance, aside from any question as to the mode in which they were made, does not afford the plaintiffs any just ground of complaint. We come, then, to consider whether, conceding that the sale should have been ordered and the deed approved by the court, the plaintiffs had such right to have that mode of sale and conveyance pursued that the legislature could not legalize the sale that was made. In our opinion they did not have such right.
In the first place, it is proper to observe that, if the legislature could not legalize this sale, the legalizing provision of the statute must be wholly inoperative and void; and to justify us in arriving at such conclusion we ought to have clear and substantial grounds. The plaintiffs claim to be aggrieved by the fact, as alleged in the petition and admitted by the demurrer, that the property was sold for less than its value. If we could see that this was a result of a want of conformity to the requirements of the law in the mode of making the sale, we should be inclined to think that the plaintiff's right to have the proper mode pursued was such that the sale could not be legalized. But there is nothing in the case that leads us to conclude that such was the fact. The executors were not obliged to sell at that time or any other time. We must presume, then, that they sold because in their judgment they obtained the full value of the property, and the testator made their judgment the sole arbiter of such question.
It was not for the court to set up its judgment in regard to the value of the property as against the judgment of the executors. Creditors are not complaining, and the court at most could only see that the sale was...
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