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equally as detrimental results 180 as within this state, and, when made within this state, it has been ruled in several cases that a judgment based thereon is null: Brown v. Langlois, 70 Mo. 226, and cases cited.
4. It has been urged that the plaintiff cannot attack collaterally the judgment rendered in the mechanic's lien suit. But there is no doubt that a stranger whose interests are about to be prejudiced by the enforcement of the judgment may show that it was rendered without jurisdiction: 2 Freeman on Judgments, 4th ed., sec. 337; 1 Freeman on Judgments, sec. 154. Besides, a judgment cannot bind the rights of a stranger: 1 Freeman on Judgments, sec. 154; 1 Black on Judgments, secs. 218-220.
5. Something has been said about the proceeding to enforce a mechanic's lien being one in rem, but this is incorrect. This is a proceeding inter partes, and so appears by the record itself: 2 Freeman on Judgments, sec. 606, and cases cited; Dunphy v. Riddle, 86 I11. 22.
But, even if such were the nature of the proceeding, it would bind no one not made a party to it, and would not be even prima facie evidence against such non-notified person: Hassall v. Wilcox, 130 U. S. 493; Windsor v. Mc Veigh, 93 U. S. 274.
There are numerous other and fatal errors which might be noted in the proceeding which plaintiff was successful in enjoining, but it is quite unnecessary to do so.
MECHANICS' LIENS-FORECLOSURE-MORTGAQEB AS PARTY.-A mechan. io's lien should be enforced by making all persons interested in the land parties to the suit, as the rights of those not made parties are not affected by the decree: Williams v. Chapman, 17 Ill. 423; 65 Am. Dec. 669, and note. A prior mortgagee is properly made a party to a proceeding to enforce a mechanic's lien under the Illinois statute, although the mortgage debt may not yet be due: North Presbyterian Church v. Jevne, 32 Ill. 214; 83 Am. Dec. 261, and note. A mortgagee need not be maile a party to proceedings to enforce a mechanic's lien in order to cut off his right to redeem. The judgment is conclusive upon the parties, and those who claim under or through them: State v. Eads, 15 Iowa, 114; 83 Am. Dec. 399, and note.
MORTGAGES-MECHANICS' LIENS-PRJORITY.-The lien of a mortgage the purchase price of land is paramount to any lien existing in favor of a mechanic for labor in erecting a building thereon: Saunders v. Bennell, 160 Mass. 48; 39 Am. St. Rep. 456, and note; but see Hazlun etc. Heater Co. v. Gordon, 2 N. Dak. 246; 33 Ain. St. Rep. 776, and note, with the cases col. lected; also the note to Kirkpatrick v. Kunsas City etc. R. R. Co., 41 Am. St. Rep. 758.
JUDGMENTS BY DEFAULT ON IMPROPER SERVICE OF PROCESS.-Judgment by default when the proof of service of process is defective is void, and a motion to vacate it cannot be resisted by proving that the summons was in fact properly served: Reinhart v. Lugo, 86 Cal. 395; 21 Am. St. Rep. 52 and note. See, also, the note to Williams v. Wescott, 14 Am. St. Rep. 296.
NOLAND V. BARRETT.
(122 MISSOURI, 181.) JUDICIAL SALES-ADMINISTRATOR’s SALE WITHOUT APPRAISEMENT—COL
LATERAL ATTACK.—The sale of real estate by an executor or adminis. trator 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 confirm. ation by the probate court; nor is it void because appraisement was
made before the entry of the order of sale. Judicial Sales. — ADMINISTRATOR'S SALES OF Real Estate, under orders of
the probate court, in those states which require such sales to be re
ported to the court for its approval or rejection, are judicial sales. JUDICIAL Sales. - ADJOURNMENT BY AN ADMINISTRATOR of a sale of real
estate to a t me different from that fixed in the order of the probato court authorizing the sale does not render void the sale as afterward made, reported, and confirmed by such court, especially if the adminis. trator has exercised a wise discretion in adjourning the sale for the pur.
pose of preventing a sacrifice of the property. JudiciaL SALES-CONFIRMATION-CONCLUSIVENESS. —The judgment of the
probate court confirming an adjourned sale of real estate made by an administrator is final and conclusive until set aside in a direct pro. ceeding, and cannot be collaterally attacked. H. C. McDougal and C. F. Moulton, for the appellants.
G. F. Ballingal and Botsford & Williams, for the respondents.
184 GANTT, P. J. This is an action of ejectment by the widow and heirs at law of William H. Twyman, late of Jack• son county, against William T. Barrett, the tenant of Mrs. Catherine E. Donnell, and Mrs. Donnell, and her husband, for two hundred and three acres of land in Jackson county, to wit: East half of the southwest quarter and west half of south west quarter, except fifty acres off of the north end of the last-mentioned tract, all in section 7, township 49, range 32 west; and all the land east of the Big Blue river in the east half of section 12 in township number 33, containing fifty acres; and the southwest quarter of section 7, township 49, range 32, and ten acres off the north side of the suuthwest quarter of section 7, township 49, range 32, con
taining in all two hundred and three acres. The ouster was laid March 1, 1888.
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 ad. mitted 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 bim 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 ber 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 voið. 1. Because the appraisement was made before and not after the order of sale; 2. The sale was void, because the administrator 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 adıninistrator 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 Wærner'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 com• mands 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