Valle v. Fleming

• Decision Date: 31 March 1854
• Parties: VALLE et al., Appellants, v. FLEMING et al., Respondents.
• Court: Missouri Supreme Court

19 Mo. 454

VALLE et al., Appellants,

v.FLEMING et al., Respondents.

Supreme Court of Missouri.

March Term, 1854.

1. An administration sale is void, when it appears affirmatively that the publication of notice, required by statute, previous to the order, could not have been made.

2. An administration sale, not approved by the court, is void; and the approval must appear from the record, although it need not be in express terms.

3. Where an administration sale, which the record shows to have been made for the payment of debts under the eighth section of article three of the act concerning executors and administrators (R. C. 1835,) is void for want of notice, it cannot be sustained on the ground that it might have been made under the second and third sections of the same article, which required no notice.

4. If an administration sale is void, it will not be rendered valid against the heirs, by the fact that they receive the benefit of the proceeds, especially when they are minors.

5. The fact that, after the death of one of two administrators, letters of administration are granted to the survivor and another, without any express revocation of the former letters, will not avoid a sale made by the last administrators.

Appeal from Madison Circuit Court.

This was an action by six of the seven heirs of C. C. Valle, to recover an undivided interest in the Mine La Motte tract of land. The record showed the following facts:

In 1838, C. C. Valle died, owning an undivided one-third of the said tract. Lewis F. Linn and E. F. Pratte owned the other two-thirds. On the 19th of December, 1838, letters of administration on Valle's estate were granted to B. St. Gemme and E. F. Pratte. On the 21st of the same month, at a special term, the administrators presented to the county court a petition, stating that the personal estate of the deceased was insufficient to pay his debts, and that his interest in the Mine La Motte tract was subject to a mortgage, which would fall due in the February following. The petition stated that there was filed with it a statement of the real and personal property of the deceased, and of his indebtedness; but the only lists which appear upon the record are lists of the debts due to and from the estate. In justification of their haste, the administrators stated in their petition, that they had consulted with the friends and relatives of the deceased, who advised them to make the application. They prayed for an order authorizing them to sell, at private or public sale, the whole or so much of the said real estate as would pay the debts of the deceased. On the same day, the court made an order, reciting that a petition had been presented, accompanied by a true account of the administration, of the debts due to and by the deceased, and of the real and personal estate and other assets, and authorizing the administrators to sell, at private sale, the whole or so much of the real estate as should be necessary to pay the debts, provided the same be not sold for less than three-fourths of its appraised value. The entire tract was appraised at $100,000. The administrators sold one-half of the interest of C. C. Valle, or one-sixth of the whole tract, to Fleming, Lamb and Chauncey, of Philadelphia, for the sum of $16,666 2-3. (Pratte and Linn, the other owners, sold one-half of their respective interests at the same time to the same parties.) No report of this sale appears upon the record of the proceedings, nor is their any entry showing that the sale was approved by the county court. On the 24th of April, 1839, Pratte and St.Gemme, as administrators, and Pratte and Linn, as owners, joined in the deeds conveying to each of the three purchasers, one undivided sixth of the entire tract. This deed was in the form of an ordinary warranty deed, recited the order of the sale of Valle's interest, dated December 21, 1838, but contained no recitals of the proceedings under the order. Pratte and Linn warranted the title for themselves, and Pratte and St. Gemme warranted it as administrators of C. C. Valle.

At the May term, 1843, of the county court, the administrators presented another petition, reciting that, pursuant to the order of December 21, 1838, they had sold at private sale the one equal undivided half of the interest of C. C. Valle in the Mine La Motte tract, for the sum of $16,666.66, upon a credit of _______ months, to some gentleman of Philadelphia. They stated the necessity for a sale of his remaining interest, and prayed for an order. This petition does not appear ever to have been acted upon.

Before this time, two decrees had been rendered in suits commenced by Robert T. Brown and Francis Valle respectively, against the widow, administrators and minor heirs of C. C. Valle, by which the title to three fifty-sixths of the Mine La Motte tract was vested in the said Brown and Francis Valle, and it was also decreed that the administrators should account to Brown and F. Valle for the one-half of their respective interests, which had been sold by the administrators with their assent, under the order of December 21, 1838.

On the 19th of January, 1844, St. Gemme having died, new letters of administration on the estate of C. C. Valle were granted to Melanie Valle and E. F. Pratte, the latter being one of the former administrators. There was no express revocation of Pratte's former letters.

On the 18th of September, 1847, the administrator and administratrix, presented another petition, reciting that they had formerly sold an equal undivided one-sixth of the Mine La Motte tract, which sale had been reported to the court, and that the proceeds had been insufficient to pay the debts of the estate. They prayed for an order for the sale of their intestate's remaining interest in the tract, being one-sixth, less three-fifty-sixths. At the November term, 1847, after publication of notice, an order of sale was made according to the prayer of the petition. A sale was made under this order to Thomas Fleming, which was approved. On the 10th of February, 1848, the administrators executed a deed to Thomas Fleming, by which, after reciting the order of sale and the proceedings thereunder, they conveyed to him “all the interest which the said C. C. Valle had in the Mine LaMotte tract at the time of his death, less three fifty-sixths.” The deed previously recited, that Valle's interest was one-sixth, less three fifty-sixths. The defendants claimed under these two administration sales, and the court declared the law in their favor. The plaintiffs appealed.

Noell & Frissell, for appellants.

The first sale is void, because there was no publication of notice previous to the order. 9 Cranch, 64; 2 Comstock, 118; 3 Comstock, 103; 7 Hill, 431; 9 Cowen, 26; 12 Wend. 473; 3 Barb. 341; 7 Barb. 39; 5 Haywood, 394; 12 Ohio, 271; 8 Metcalf, 355; 9 Shepley (Me.) Rep. 321; 13 Shepley, 226; 6 N. Hampshire, 370; 6 Howard (Miss.) Rep. 106, 269; 1 Smedes & Marsh, 351; 2 Smedes & Marsh. 326; 6 Smedes & Marsh. 259; 7 Smedes & Marsh, 449; 9 Mo. Rep. 362; 16 Mo. Rep. 437; 12 Mo. Rep. 63; 9 Mo. Rep. 785; 12 Mo. Rep. 178; 1 Hill (N. Y.) 130. The order of publication cannot be presumed, when it is not shown by the record. 11 Howard (U. S.) 360. No presumption can be indulged in that the law has been complied with, as was done in the case of Grignon's lessee v. Astor. 2 Howard, because it here appears affirmatively that it could not have been complied with. The order of sale was made two days after the grant of letters. If it be said that the plaintiffs cannot take advantage of the irregularity in a collateral proceeding, it is replied that the very matter of which they complain is, that they had no opportunity to contest the matter in the county court, or to appeal, and no writ of error lies in such cases. R. C. 1835, p. 63, § 2; Ib. p. 518, § 2; 9 Mo. 362. The case of Overton v. Johnson, 17 Mo. is not in point. There, the question whether the want of notice would avoid the sale is expressly reserved. Another objection to the first sale is, that there was no report or confirmation, which renders it void under the statute. R. C. 1835, p. 53. §§ 20, 21, 22; 2 Smedes & Marsh. 326. The deeds of the administrators are inoperative to convey any interest of the deceased in the land, as they purport only to convey the interest of the administrators, with covenants for title. 6 Connecticut, 258, 373. As to the second sale, it is void, because the letters of administration granted to Melanie Valle and E. F. Pratte were void, the first letters to Pratte and Ste. Gemme remaining in full force. Post v. Caulk, 3 Mo.; 12 Mo. 63.

T. T. Gantt and R. M. Field, for respondents.

1. The county court having jurisdiction of the subject matter, the want of an order of publication previous to the order of sale is not a defect which can be taken advantage of in a collateral proceeding. Overton v. Johnson, 17 Mo. 442; Frye v. Kimball, 16 Mo. 9; Snyder v. Markel, 8 Watts, 416; Grignon's lessee v. Astor, 2 Howard's (U. S.) 319; 4 Wend. 436; 11 S. & R. 429.

2. The proceedings under the order of sale were approved by the county court at the May term, 1843, as shown by the record.

3. This sale was under section 3 of article 3 of the administration act of 1835, and there was no necessity for an order of publication, report or confirmation.

4. The second sale was, in all respects, regular, and the court ordered the execution of a deed, conveying all the right, title and interest which the decedent had in the Mine La Motte tract, at the time of his death. This order is broad enough to cover the interest attempted to be conveyed by the first sale, if that sale was void.

5. A part of the money arising from the sale under the order of 1838, was applied to the payment of the amounts decreed to Brown and Valle in the chancery suits, to which plaintiffs were parties, in exoneration of that part of the estate remaining unsold. This was a waiver on the part of the heirs of any irregularity in the...