taining in all two hundred and three acres. laid March 1, 1888.

The ouster was

The answer is a general denial, and a plea of the statute of limitations as to one hundred acres of the land, and an averment of title to all of the land in Mrs. Donnell. The verdict and judgment was for the defendants in the court below, and since this appeal the plaintiff's have abandoned in this court any claim to one hundred acres, being all the land east of the Big Blue river in section 12, township 49, range 33, and fifty acres off the north end of the west half of the southwest quarter of section 7, township 49, range 32. 185 Mrs. Elizabeth Heald is the widow of William H. Twy. man, deceased; said Twyman died in March, 1874, seised and possessed of all the lands sued for in fee simple; he left five children, plaintiffs in this case. The defendants admitted possession, and denied all other allegations.

The defendants, to maintain their defense, proved the following facts:

1. That soon after the death of William H. Twyman, deceased, and on March 25, 1874, one Jesse Noland was duly appointed as the administrator of his estate, and, as such, sold for the payment of debts, to said defendant Mack S. C. Donnell, on June 8, 1874, one hundred acres of said land, being the same one hundred acres described in the answer herein, and there claimed by defendant under the ten years' limitation.

2. That upon the acceptance of the resignation of said. Noland as such administrator, and on November 16, 1878, Milton Moore, then public administrator of Jackson county, was ordered to, and did, take charge of said estate, as the administrator de bonis non thereof.

3. That on August 11, 1880, said Milton Moore, as such administrator de bonis non, filed in the probate court his petition "for the sale of the whole of the real estate and of the personal estate with its appraised value," and that an order of publication was then duly entered thereupon.

4. That at the next term, and on November 13, 1880, upon proof of publication, said probate court ordered a sale of said real estate "at public or private sale," and if the former, then the court "further orders that said administrator give notice of the time, terms, and place of sale as by law required," etc.

5. That under the order of sale made at said 186 Novem

ber term, 1880, the administrator, Milton Moore, advertised the one hundred and three acres of land, remaining in dispute in this case, for sale at public auction, on February 14, 1881, and on that day he appeared at the courthouse in Independence to make said sale, and offered said property for sale under the terms of said order, but, to use the language of his report of sale, "a snowstorm of unprecedented violence had been prevailing throughout the country, rendering many of the public roads almost impassable, and it was represented to him that, owing to the inclemency of the weather and the state of the roads, many persons who desired to bid for said property could not be present, among the number the widow of the deceased, and, deeming it for the best interests of the creditors of the estate and for the estate itself, he adjourned said sale until Saturday, the nineteenth day of February, 1881, then to be made in pursuance of said order, notice, and adjournment, and then continued said sale to the 19th of February, 1881, and again exposed said property to the highest and best bidder, and at said sale John McMahon, Esq., was the best bidder, for twelve hundred dollars, and it was sold to him for that sum." This report was duly verified, and was accompanied by the appraisement made August 9, 1880, and was duly approved by an order of record by the probate court of Jackson county.

On May 14, 1881, said administrator made his administrator's deed to said McMahon, in which said appraisement is recited as made on August 9, 1880, and that "said sale was adjourned from February 14th to February 19th, owing to the inclemency of the weather, and impassable condition of the roads, and want of bidders."

It was shown aliunde the report and deed, that on Saturday, Mrs. Twyman, Mr. Hale, her father, and 187 Mr. Hale, her brother, were present, and bid at the sale, and many other bidders, and that it sold for its fair value at that time. It was also shown that the administrator received all of the twelve hundred dollars; that it was applied in part to the debts, and the balance of eight hundred and twentyfour dollars was distributed by the administrator to the heirs, the plaintiffs herein; that McMahon conveyed to Mrs. Donnell in 1881, and she and her husband and their tenants have ever since been in possession thereof, and have paid all the taxes thereon.

Plaintiffs seek to recover on two grounds: They maintain

the sale by the administrator, Moore, and his deed are void. 1. Because the appraisement was made before and not after the order of sale; 2. The sale was void, because the adminis trator adjourned and continued it from February 14 to February 19, 1881.

1. The statute in force when this sale was made was the same as our present statute, and required that "before any executor or administrator shall sell any real estate or any interest therein, by order of the court, he shall have it appraised by three disinterested householders of the county in which the land lies": Rev. Stats. 1879, sec. 162; Rev. Stats. 1889, sec. 161. The obvious purpose of this provision was to advise the probate court of the value of the estate, and assist it in exercising its judicial discretion in approving or disapproving the sale, and also to furnish prima facie evidence of value and the good faith of the administrator or executor and the purchaser.

The sale of the real estate by an executor or administrator without having it appraised is an irregularity for which the sale may be set aside in a direct proceeding for that purpose, but it is not on this account absolutely void in a collateral proceeding after confirmation by the probate court: 2 Worner's American Law of Administration, 188 sec. 476; Bell v. Green, 38 Ark. 78; Apel v. Kelsey, 47 Ark. 413; Neligh v. Keene, 16 Neb. 407.

If a sale is not to be treated as wholly void in a collateral proceeding where no appraisement at all is had, a fortiori a sale is not to be held void when a perfectly fair appraisement, contemporaneous with the filing of the petition for sale, is made, but before the order of the sale. The statute commands an appraisement, but it is silent when that appraisement shall be made. This appraisement was made two days before the petition for sale was filed. In this manner not only was the court furnished with a guide for its approval or disapproval, but it was enabled in the first instance to determine how much and what part of the estate should be sold. While it is believed the general practice in this state has been to cause an appraisement to be made after the order of sale, we are not prepared to declare that an appraisement made at the time of filing the petition would be irregular, but we have no hesitancy in saying it will not render the sale void. Clearly not, after its approval by the probate court, under whose orders and direction it was done. Irregularities in the ap

praisement have not heretofore been considered by this court sufficient to invalidate the sale of an administrator or curator: Moore v. Wingate, 53 Mo. 398; Johnson v. Beazley, 65 Mo. 250; 27 Am. Rep. 276; McVey v. McVey, 51 Mo. 406; Bobb v. Barnum, 59 Mo. 394.

But, even if the appraisement be conceded to be irregular, the subsequent confirmation of the report, in which that appraisement was specifically called to the attention of the probate court and of all parties interested in said lands, cured the irregularity. The order of approval was a final judgment from which an appeal could have been taken, and was the judgment of a court having jurisdiction of the cause and over the parties, and is entitled in this collateral proceeding to the same 189 favorable presumptions and intendments that are accorded to the judgments of circuit courts, and no more open to collateral attack: McVey v. McVey, 51 Mo. 406; Camden v. Plain, 91 Mo. 117; Price v. Springfield Real Estate Assn., 101 Mo. 107; 20 Am. St. Rep. 595; Lingo v. Burford, 112 Mo. 149.

2. The remaining proposition is that the adjournment of the sale from Monday, the fourteenth day of February, 1881, to Saturday, the nineteenth day of February, 1881, rendered the sale void, notwithstanding an unprecedented, snowstorm had so blocked up the roads that the widow and others desiring to bid could not reach the courthouse, and this was known to the administrator, and the adjournment secured their presence on Saturday, and the land brought a fair price.

An administrator's sale of real estate, under the orders of a probate court, in those states which require such sales to be reported to the court for its approval or rejection is a judicial sale: Halleck v. Guy, 9 Cal. 181; 70 Am. Dec. 643; Mason v. Osgood, 64 N. C. 467; Vandever v. Baker, 13 Pa. St. 121; Lynch v. Baxter, 4 Tex. 431; 51 Am. Dec. 735; Worthington v. McRoberts, 9 Ala. 297; Grignon v. Astor, 2 How. 319. The law requiring such sales to receive the approbation of the court before it shall be binding or valid to pass the title, in effect makes the sale the act of the court; hence the propriety of denominating such sales "judicial sales."

In this state it has been common to denominate sheriff's sales, whether under execution or decrees in partition, as judicial: Seymour v. Farrell, 51 Mo. 95; Hewitt v. Weatherby, 57 Mo. 276. But in most of the courts of last resort, and by the most discriminating text-writers, the distinction has been

consistently maintained between judicial sales and execution sales in those states in which execution sales are not required to be reported to the courts for approval. The sheriff sells by the naked authority of the writ, and he must 190 conform to the law, else his sale will be irregular or void according to the materiality of his departure from the requirements of the statute. If his sale is not void the title passes at once, by his deed, without the approval of the court, whereas, if the sale is a technical judicial sale, as it is now understood, that is to say, a sale under a decree or order of the court, and which must be reported to the court for its approval, no title passes until it is approved: State v. Towl, 48 Mo. 148; Valle v. Fleming, 29 Mo. 152; 77 Am. Dec. 557; Evans v. Snyder, 64 Mo. 516; Snider v. Coleman, 72 Mo. 568; Henry v. McKerlie, 78 Mo. 416; Rorer on Judicial Sales, sec. 43.

While execution sales have sometimes been denominated judicial sales by this court it does not follow that the distinction drawn by other courts between administrator's and other judicial sales and execution sales does not obtain in this court also. By our laws and decisions an administrator's sale has no binding effect until approved by the probate court, thus bringing it strictly within the principle of those cases which hold such sales are judicial as contradistinguished from execution sales, which are ministerial.

The courts of this state have always endeavored to sustain sales made by ministerial officers under executions on judg ments. The welfare of the community demanded that they should, for in this way property brought fair prices, and was not liable to sacrifice. But such sales are the acts of a ministerial officer, whose authority is derived from and is regulated by the law itself, and he is not required to call upon the court for approval of his acts. When the court renders judgment and awards execution its function is ended. It does not direct the sheriff on what property to levy or how to make his sale. The law in such 191 cases is his guide. If he is guilty of an irregularity the court is not responsible for it.

In a judicial sale he acts as the agent or instrument of the court to sell a particular piece of property. He is bound to report his proceedings to the court, and, if the court approves his acts, it adopts them as its own, and it becomes a judicial act, and, if the court has jurisdiction, its decision is not open to collateral attack.

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