Imágenes de páginas

praisement have not beretofore 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 blocked

up the roads that the widow and others desir. ing 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; orthington v. Mc Roberts, 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; IIewitt 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 judge 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 oflicer, whose authority is derived from and is regu. lated 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 approveg 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.


We have been led into this discussion because the plaintiff's rely upon the case of Ladd v. Shippe, 57 Mo. 523, in which a sheriff postponed a sheriff's sale of real estate on the day for which it was advertised to the succeeding day, and this fact appearing on the face of the deed, it was held void, because the officer had no power to adjourn the sale.

The statute of 1835 required that “all property taken in execution by any officer shall be exposed to sale on the day for which it is advertised, between the hours of 9 in the forenoon and 5 of the afternoon, publicly, by auction, for ready money, and the highest bidder shall be the purchaser." Judge Vories says: “It does not appear at whose motion the Bale was postponed by the court, or that either party was present consenting thereto; nor does it appear at what par. ticular time the proclamation was made at the courthouse door. It seems to me that it would be a very dangerous precedent to hold that a sale might be postponed in this way; it would open the door for abuse."

So that, while it may be true that a ministerial officer, acting under the statute, may be restricted to the methods prescribed by the statute, it becomes necessary to inquire whether an adjournment of a sale made under a decree in chancery, or the order of a 192 probate court, will render it void, if subsequently reported to and approved by the court.

In Blossom v. Railroad Co., 3 Wall. 196, under a foreclosure decree, the marshal advertised the railroad for sale on June 6, 1862, but as no bids were received that day he adjourned the sale to the 19th of that month. He again offered it for sale and Blossom bid two hundred and fifty thousand dollars, which was the best bid at the time, but the agent of the stockholders requested the solicitors of complainant to postpone the sale to another day, and they agreed, and the marshal again continued the sale for two days, and announced that appellant's bid would be regarded as pending. An arrangement was then made to prevent the sale altogether. Blossom, having increased his bid to the full amount of the debt, then applied to the court to have the sale confirmed to bim, but the court denied his prayer. His contention in the Bupreme court was that, inasmuch as his bid was the highest, it was the duty of the marshal to strike it off to him, and he had no right to postpone the sale.

Upon this state of facts the supreme court of the United States said: "Every such officer bas a right to exercise

reasonable discretion to adjourn such a sale, and all that can be required of him is, that he should have proper qualifica. tions, use due diligence in ascertaining the circumstances, and act in good faith, and with an honest intention to perform his duty. The general rule is, that a sheriff is not bound to obey the directions of the attorney of the creditor to make an unreasonable sale of the property of the debtor, if he sees that the time selected, or other attending circumstances, will be likely to produce great sacrifice of the property; but he may in such a case, if he thinks proper, postpone the sale, especially if it appears that the creditor will not sustain any considerable injury by the delay; and no 193 reason is perceived why the same rule may not be safely applied in judicial sales made under the decretal order of a court of chancery..... The marshal or master, in carrying out a decretal order, is more than an auctioneer. They have duties to perform for all concerned, and in the performance of those duties they may adjourn the sale for good cause shown." . The difference between an adninistrator acting under an order of court and a marshal or master in chancery under the decree of a court of equity is merely one of mode, and in nowise affects the principle involved. In either case the officer making the sale occupies a position of trust.

In Richard v. Holmes, 18 How. 143-147, the supreme court of the United States, discussing the duty of a trustee to postpone a sale in foreclosing under a deed of trust, said: “If he has not this power the elements or many unexpected occur. rences may prevent an attendance of bidders, and cause an inevitable sacrifice of the property. It is a power which every prudent owner would exercise in his own behalf under the circumstances supposed, and which he may well be presumed to intend to confer on another. This power of sale does not undertake to prescribe the particular manner of making the sale. It is to be at public auction, and 'after having given public notice of such sale by advertisement at least thirty days,' but it assumes that the sale will be conducted as such sales are usually conducted. A sale regularly adjourned, so as to give notice to all persons present of the time and place to which it is adjourned, is, when made, in effect the sale of which previous public notice was given."

Other courts have held that a public officer, upon whom a power of sale is conferred by law, may adjourn an advertised

public sale to a different time and 194 place to obtain a better price: Tinkum v. Purdy, 5 Johns. 345; Russell v. Richards, 11 Me. 371; 26 Am. Dec. 532; Lantz v. Worthington, 4 Pa. St. 153; 45 Am. Dec. 682; Warren v. Leland, 9 Mass. 265; Collier v. Whipple, 13 Wend. 229; Dexter v. Shepard, 117 Mass. 485; Allen v. Cole, 9 N. J. Eq. 286; 59 Am. Dec. 416; Coxe v. Halsted, 2 N. J. Eq. 311; Miller v. Law, 10 Rich. Eq. 320; 73 Am. Dec. 92.

So that a master in chancery under a decree, and an administrator or executor under an order of sale, may postpone a sale when it would otherwise result in injury to the estate or creditors, nor do we perceive the great danger in permitting such a course, seeing that it must be reported for approval. Until the court approves, no title, legal or equitable, can pass, and it is open to the objections of all interested parties; but when the probate court, having once acquired jurisdiction, approves the sale, all these questions are concluded by its judgment in all collateral actions: 2 Wærner's American Law of Administration, sec. 478; authorities, supra.

The approval of the report in this case, which stated the postponement and the exigency therefor, was a judgment by the probate court that in its opinion the administrator exercised a wise discretion in adjourning said sale, and that judge ment is final and conclusive until impeached and set aside in a direct proceeding. It results that the judgment of the circuit court inust be, and is, affirmed.

All of this division concur.

Judicial SALES, WHETHER SALES BY EXECUTORS OR ADMINISTRATORS ARE. — A sale of land by an executor or adlininistrator is a judicial sale: Lynch v. Barter, 4 Tex. 431; 51 Am. Dec. 735, and note; Suckett v. Twining, 18 Pa. St. 199; 57 Am. Dec. 599, and note; Halleck v. Guy, 9 Cal. 181; 70 Ain. Dec. 643, and note, with the cases collecteel. In McGuinness v. Whalen, 16 R. I. 558; 27 Arn. St. Rep. 763, it was held that under the Rhode Island statutes such sales were not judicial sales.

JUDICIAL Sales—A DJOURNMENT.-A sale may be all journed by the sher. iff, public otficer, or t: ustee appointed to make it without giving further notice: Hosmer v. Suryent, S Allen, 97; 85 Am. Dec. 683, and note; but in Tippelt v. Vize, 30 Tex. 361, 91 Ain. Dec. 313, it was held that sales by an administrator must be made in the prescribed minner, and, if made at a place and time other than that prescriled by the statute or decree, they are not only irregular, but void. The subject of the adjournment of ju licial sales is discussed at length in the extended vote to Russell v. Richurus, 26 Am. Dec. 536.

JUDICIAL Sales. - EFFECT AND CONCLUSIVENESS OF ORDER CONFIRMING: See the extended note to Wutsun v. Tromble, 29 Ain. St. Rep. 195. An

« AnteriorContinuar »