McCrubb v. Bray

Administbatob’s Sale. (1) Void where statutory conditions not complied with. (2) Three weeks notice, construed. (3) Sale void if made in administrator's interest. (4) Effect of administrator's interest, as to subsequent bona fide purchaser, not decided. Ejectment: Mesne Pboeits. (5,6) Gase stated; instructions to the jury. (7) Mesne profits assessed to time of trial. (8) Allowed during plaintiff’s minority. (9) Money expended for plaintiff’s support, how recovered. (10) Improvements by defendant recoverable under “ Betterment Act." 1. If any one of tbe conditions mentioned in sec. 62, cb. 94, E. 8. (Tay. Stats., 1193, § 62) is wanting, or does not appear by direct proof or legal inference, a sale of land made by an administrator, executor or guardian, under that chapter, is void. 2. Tbe statute requires notice of sucb a sale to be posted and published “ for three weeks successively next before sucb sale.” Held, that three weeks (or twenty-one days) must intervene between tbe first publication and posting of tbe notice and tbe day of sale, or the sale will be void. 3. Tbe statute (sec. 27) provides that the executor, administrator or guardian by whom tbe sale is made, shall not directly or indirectly purchase or be interested in tbe purchase of tbe real estate sold, and that all sales made contrary to that provision shall be void. One of tbe conditions of a valid sale specified in sec. 62 is, that tbe premises must be held by “ one who purchased in good faith.” Where an administrator’s account against an estate had been allowed at $1,500, and the land was sold for the same amount, to a stranger, and immediately conveyed by the latter to the administrator for the same amount, and the administrator immediately filed a receipt to the estate for that amount: Held, that the purchase was not in good faith, and the sale was void. 4. Whether, where the administrator was interested in the sale of land of the estate sold by him.under a valid license, the sale would be held void as against a Iona fide purchaser to whom it had been subsequently conveyed, is not here decided. 5. Defendant in ejectment claimed the land under a void administrator’s sale made by himself nominally to another person. Plaintiff claimed as heir. Before his appointment as administrator, defendant had intermarried with the widow of the intestate; plaintiff was then and for many years after a minor, and his mother had been appointed and qualified as his guardian. Defendant held the premises .in dispute for over six years adversely to plaintiff, and neither the latter nor his guardian had possession thereof, of received or had any control over the mesne profits, as such, It seems, that it would not have been error if the court had instructed the jury absolutely that plaintiff was entitled to recover the mesne profits, under the statute (R. S., ch. 141, ’ sec. 13). 6. The court submitted to the jury the question whether the proceeds of the land had been received by plaintiff’s guardian, and applied for his benefit, and charged that, if so, plaintiff' was not entitled to recover mesne profits which accrued before the commencement of the action. Held, that if there was any error in this, it was in defendant’s favor, and is no ground for disturbing the judgment on his appeal. , 7. Damages for mesne profits should be assessed to the day of trial. 8. Plaintiff recovering in ejectment may claim mesne profits’which ac crued during his minority. 9. If the defendant in ejectment has expended money for the maintenance of the plaintiff,-he may recover it in some appropriate proceeding, but not in the ejectment suit. 10.If defendant in ejectment is entitled to be paid for improvements made by him on the land in dispute, his remedy is under the “ Betterment Act.”

APPEAL from the Circuit Court for Iowa County. This action was brought to recover the undividéd one-half of certain real- estate. The plaintiff claims as one of two heirs of John McCrubb, who died intestate in 1855, seized of both moieties of the land described in the complaint. The intestate left a widow, and two infant children, of whom the plaintiff is one. The plaintiff became twenty-one years of age in December, 1871, and commenced this action in April, 1872. The defendant claims title under a deed executed by the administrator of tbe estate of John McCrubb, and tbe facts relating to the execution of such'deed and to the title claimed by the defendant, so far as it is necessary to state them, are as follows: Before any proceedings were taken in the county court to administer the estate of McCrubb, his widow intermarried with the defendant. On the 7th of January, 1857, she presented her. petition to the county court of Iowa county, praying that administration of such estate be granted to the defendant. After due notice of the' hearing of such petition, the prayer thereof was granted, and the defendant having filed the oath and given the bond required by law, letters of administration were duly issued to him by the county court, which bear'date Feb; ruary 3, 1857. On the same day appraisers were appointed, who afterwards returned an inventory and appraisement of the estate, from which it appears that the estate consisted of 305 55-100 acres of land in that county, appraised • at ten dollars per acre ; also of personal property selected by the widow pursuant to the statute, to the amount of over $300, and'other personal property (excluding grain and provisions), appraised at over $400. February 1, 1858, the county court extended the time for administering the estate six months from that date. No further proceedings in the matter of 'the estate were had in the county court until December 6, 1861, when -defendant presented to the court what purported to be his final account of his administration, in which he states that he has paid out on account of the estate $946.59. This account is very imperfectly itemized, but it shows that $117.59 'of the amount was for taxes; $Í00 for building á barn ; $502.50 for breaking, fencing and grubbing; $100 for funeral expenses and tombstone ; $35 for physician’s bill; and $55 on two other accounts; but what they were for, or when or by whom made, does not appear. The balance consists principally' of probate and attorney’s fees, and costs. The defendant further stated in -such account, that ever since he was appointed administrator he had devoted his entire time, skill and labor to the cultivation and improvement of the farm, except the time required in the discharge of his duties as administrator, and claimed compensation therefor. On January 6th, after due notice of hearing had been given, the county judge made an order allowing such account at $1,500. On the 11th of January, 1862, the defendant presented to the court a petition for license to sell the land of which that in controversy is a moiety, and, after due publication of notice of the hearing thereon, the prayer of the petition was granted. Notice of sale of such land by the administrator was thereupon given by posting the same in three of the most public places in the town in which the land was situated, on the 28 th of February, 1862, and by publication thereof in a newspaper of Iowa county on the 27th of the same month and on the 6th and 13th days of the following month. The sale was noticed to take place on March 14, 1862, on which day the defendant sold the premises to one Patrick McDonough for $1,500, and on the following day executed to him a conveyance thereof in the usual form of administrators’ deeds. On the same 15th day of March, McDonough conveyed said land to the defendant for the consideration expressed in the deed, of $1,500. On the day of the sale the county judge made an order confirming the sale; on the next day the defendant filed a receipt to the estate for $1,500; and on the 17th of the same month the judge made an order reciting that the estate had been fully administered, and discharging the defendant from the further administration thereof. It may be here stated that on the 30th of December, 1861, Mrs. Bray was appointed by the county judge the general guardian of her children and duly qualified as such, and that afterwards she filed an inventory of the property of her wards, consisting of the lands, not sold by the administrator, of which John McCrubb died seized. No mention is made therein of personal property. This inventory is filed by the county judge, “Approved and recorded March 31, 1862.” The foregoing facts appear from the records and papers in the office of the county judge pertaining to such estate, all of which were read in evidence on the trial of the action. The circuit judge held that the administrator’s deed was void, and only submitted to the jury the question of the amount of mesne profits which the plaintiff was entitled. to recover. On that subject the court instructed the jury as follows : “ In respect to mesne profits, if the jury find that the farm was as much under the management and control of Mrs. Bray, .the mother and the general guardian of the plaintiff, as it would have been had the defendant never procured a deed for it — that the land was cultivated and the proceeds applied to the plaintiff’s benefit, just as it would have been had not the defendant obtained such deed, — then the plaintiff is not entitled to mesne profits, except after the commencement of this action. “If it appears that the plaintiff was deprived, through the defendant’s deed and claim, of such benefits of the mesne profits as his guardian, his mother, would have given him, and to which he was rightfully entitled, in his support, maintenance and education, to the extent of this deprivation the plaintiff is entitled to recover mesne profits. He is entitled to the mesne profits proven after the commencement of this action. The jury cannot go bade in any case beyond six years.” The jury found for the plaintiff, and that he was the owner in fee of the lands described and claimed in the complaint, and' assessed his damages and the mesne profits at $480. After a motion for a new trial had been overruled, judgment was entered on the verdict. The defendant appealed. contended, among other things, that the notice of the sale was sufficient. “ The general rule in respect to notices is, that mere informalities do not vitiate them, so long as they do not mislead, and the notice gives the necessary information to the proper party.” Black v. G. & N. W. B'y Go., 18 Wis., 208. The statute does not contemplate the sale being rendered voidable, or void, because of a failure to publish the notice the prescribed length of time. It provides that the sale shall not be avoided if it shall appear that the administrator gave notice of the time and place of sale, which was done in this case. The sale here was made by a court of competent jurisdiction, which, under our statute, is to be regarded as a court of record (R. S., ch. 117, secs. 2, 3, 6, 51; Laws of 1861, ch. 127): and such sale can no more be impeached collaterally than can the judgment of this court. It could not have been set aside even by a direct proceeding for that purpose, since there was a substantial compliance with the statute. “The purchaser at an administrator’s sale of lands in probate is not bound to look behind the decree, more than to see if there was jurisdiction in the court making it, of the subject matter and of the parties in interest.” After confirmation of the sale, the only remedy is by a direct proceeding to set aside the judgment. Rorer on Judicial Sales, 117; Myers v. McDougal, 47 Ill., 278; Thorne v. Ingram, 25 Ark., 52. A mere irregularity in the proceedings, or in the manner of conducting the sale, if there be no want of jurisdiction in the court, will not avoid a sale in probate, by an executor or administrator, for payment of a decedent’s debts. Rorer on Judicial Sales, 122. When the sale is reported and approved by the court, it cannot be impeached collaterally for insufficiency in the notice of sale. If the probate court err in adjudicating the notice to be sufficient, the error can only be corrected on appeal, and cannot be taken advantage of collaterally in proceedings involving title under the sale. Rorer on Judicial Sales, 123; Morrow v. Weed, 4 Iowa., 77. Counsel also contended that the court erred in its instructions relative to mesne profits. argued that the clear meaning and intent of tlie statute requiring notice to be posted in three public places and published for three weeks successively before the sale, is not that the notice shall be three, times inserted in the newspaper, but that it shall be both published and posted for three full weeks successively next before the sale. A strict compliance with these provisions is a condition precedent to the validity of the sale. When the law says notice shall be posted and published for three weeks, it is only a shorter way of saying it shall be posted and published twenty-one days before the sale. Olcott v. Robinson, 20 Barb., 148 : Gibson v.Roll, 30 Ill., 172; Monahan v. Vandyke, 27 id., 154 ; Richardson v. Bates, 23 How. Pr., 516. Counsel also contended that there was no error to defendant’s injury in the instructions given on the subject of mesne profits.