Rugle v. Webster

Waoner, Judge,

delivered the opinion of the court.

This was an action of ejectment, broughtby the plaintiffs in the court below, to x*ecover the possession of certains lands lying in Polk county. The plaintiffs claim title a'S the heirs of one Isaac T. Davis, deceased, and the defendant claims by virtue of a pixx’chase and deed made at an administi’ators sale, at which the land was sold to pay debts owing by the decedent. Judgment having gone for the plaintiffs in the Cix’cuit Court, the case is brought here for review by appeal. In suppox’t of the judgment it is contended that the proeeediixgs in the County Court taken-by the administrator to procure a sale of the land, and the deeds made to the purchaser after the sale, wex'e all entirely void, and that no title was conveyed. From the recox*d it seems that the administi’ator did not x’eside in Polk county, where the estate was situated and the administration was had, and that the application for a sale of the land for the payment of debts was made by an attorney, *249 duly employed and authorized by the administrator, and acting in his behalf and stead. The petition presented to the court, although making the necessary averments, was defective in not being accompanied with an account of the administration, and a list of the debts, due to and by the deceased, and remaining unpaid, as the statute requires. The affidavit as to the truth of the petition was also made by the attorney instead of the administrator in person, and the affidavit appended to the report of the sale was also made in like manner. When the petition was presented to the court, the sale of the decedent’s land was ordered and notices of the sale were regularly given, and the sale took place during a session of the Circuit Court, and at a proper time. The defendant was a purchaser of the land sued for, and paid the purchase money. At the next term of the County Court a report of the proceedings and sale were duly made, and the sale was approved. The administrator, by his attorney in fact, then executed to the defendant a deed, conveying the land, which contained all statutory recitals, and was duly acknowledged and recorded. After the execution of this deed the administrator made a final settlement showing a balance in his hands due the estate, but nothing further appears to have been done, and there was no order of record discharging him from his trust. While the record was standing in this shape, and subsequent to the final settlement, the administrator in person made a deed to the defendant as purchaser of the land in controversy, which was regular in all its forms, was properly acknowledged and recorded.

The above, in substance, contains all the facts necessary to be noticed in the case. Although the proceedings may have been irregular, and the affidavits not made in literal compliance with the law, yet there are not such jurisdictional facts as would render them wholly void. Sufficient cause might have existed for a reversal in a direct proceeding brought for that purpose, but certainly there is no ground for a collateral impeachment. In the case of Overton vs. Johnson, ( 17 Mo., 442 ,) it was held, that the accounts, lists, inventories and *250 appraisements which the statute requires to be filed with a petition for the sale of a decedents real estate, are not necesessary to give the court jurisdiction, and that a failure to file them would not render the sale void. The court, speaking through Gamble J., said: “The jurisdiction is acquired by filing a petition praying the court to do an act or make an order which under the statute the court is competent to do. Whether the petition is in proper form, or sets forth sufficient facts, or is accompanied with the proper evidence, the court will decide in the exercise of its jurisdiction.”

It was for the court, when the petition was presented, to determine its sufficiency, and if it made an erroneous decision, the proper remedy was by appeal. The report of the sale was made at the next term after it was had, and the sale was approved. This was the term designated by statute and all the interested parties were then in court, and for any irregularity or injustice an appeal was open to them. When the sale was approved, it only remained for the administrator to perform the ministerial duty of making to the purchaser a deed. Whether the administrator could exercise the act of making a conveyance by delegating the authority to another person to do it in his stead, is a question upon which I have doubts, but it is unnecessary, however, to decide it in this case. If we treat the first deed as a nullity, there was another one made by the administrator, which was entirely good and conveyed the title. But it is objected that this deed was made after final settlement, and therefore the administrator had no longer any authority to act. This objection cannot be sustained. After the approval of this report it was a duty that devolved upon him. If he attempted to execute it, and did it imperfectly, he might make the proper correction at any time. (Kiley vs. Cranor, 51 Mo., 541 .) But, so far as the record shows, he was still administrator when he made and acknowledged the second deed. It is true he had made his final settlement, but it is not shown that he was discharged by the court. He still had money in his hands belonging to the estate. No order of distribution was made, and he remained within the control and jurisdiction of the court.

*251 The present case is clearly distinguishable from Caldwell vs. Lockridge, ( 9 Mo., 358 ,) where the administrator made his final settlement and then resigned. It was there held that after final settlement and resignation of his office, he was no longer in court. Rut as in this case there was neither a discharge by the. court, nor a resignation by the administrator, we think he was still acting in an official capacity. (See McVey vs. McVey, 51 Mo., 106 .)

The judgmient should be reversed and the cause remanded.

The other judges concur.