« AnteriorContinuar »
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 foreroon 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 him, 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
a 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 administrator 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 occurrences 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 Werner's American Law of Administration, sec. 478; authorities, su pra.
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 judg. 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 adıninistrator is a judicial sale: Lyuch v. Barter, 4 Tex. 431; 51 Am. Dec. 735, and note; Sucketl v. I'wining, 18 Pa. St. 199; 57 Am. Dec. 599, and note; Halleck v. Guy, 9 Cal. 181; 70 Am. Dec. 643, and note, with the cases collected. In McGuinness v. Whalen, 16 R. I. 558; 27 Am. 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 auljourned by the sher. iff, public officer, or ti ustee appointed to make it without giving further notice: Hosmer v. Siryent, S Allen, 97; 85 Am. Dec. 683, and note; but in Tippelt v. Vize, 30 Tex. 301, 91 Am. Dec. 313, it was held that sales by an administrator must be made in the prescribed inwoner, and, if made at a place and time other tlian that prescriled by the statute or decree, they are not only irregular, but void. The suliject of the adjournment of ju licial sales is discussed at leugth in the extended note to Russell v. Richards, 26 Am. Dec. 536.
JUDICIAL Sales. — EFFECT AND CONCLUSIVENESS OF ORDER CONFIRMINO: See the extended note to Watson v. Trombie, 29 Am. St. Rep. 495. An order of the probate court confirming an executor's sale must be treated as final and conclusive until reversed or vacated (Bland v. Muncaster, 24 Migs. 62; 57 Ain. Dec. 162), and will not be inquired into collaterally: Sackell v. Twining, 18 Pa. St. 599; 57 Am. Dec. 599, and note; Richardson v. Butler, 82 Cal. 174; 16 Ann. St. Rep. 101, and note. In Townsend v. Tallant, 33 Cal. 45; 91 Am. Dec. 617, it was held that a void administrator's sale could be attacked collaterally, although confirmed by the probate court.
RUSSELL v. RUSSELL.
(122 MISSOURI, 235.) PARTITION. – ESTATES BY ENTIRETY are Dissolved BY DIVORCE; they then
become tenancies in common, and may be partitioned. I. C. Duckworth, for the appellants. I. II. Lucas, for the respondent.
236 SHERWOOD, J. The question presented by this appeal is whether a wife divorced from her husband can have partition of land owned by them prior to such divorce as tenants by the entirety. Such tenancies were recognized at an early day in this state (Gibson v. Zimmerman, 12 Mo. 385); at a time, too, 237 when our statute was in this form: “Every interest in real estate granted or devised to two or more persons, other than executors or trustees, as such, shall be a tenancy in common, unless expressly declared, in such grant or devise, to be in joint tenancy.” The statute had been in this form since 1835, and substantially in that form ever since 1825. Thus the statute remained until 1865, when it was amended by striking out the words “as such" and inserting immediately after them “or to husband and wife": Gen. Stats. 1865, sec. 12, p. 443.
This rule of the common law seems to have been intentionally emphasized in the amended statute just quoted, is a settled rule of property of this state, and the section still retains a place in the last revision: 2 Rev. Stats. 1889. sec. 8844; Garner v. Jones, 52 Mo. 63; Shroyer v. Nickell, 55 Mo. 264; Hall v. Stephens, 65 Mo. 670; 27 Am. Rep. 302. In which last case, after a considerable citation and discussion of authorities, it was ruled that the interest of a husband in land by entirety could be sold under execution, but that his wife, surviving him, would take the entire estate.
The peculiarities of this sort of tenancy are derived from the fact that in legal contemplation husband and wife are a unit of personality; there can be no moieties between them; they are each seised of the entirety per tout, not per my and the husband cannot forfeit or alien the estate, except during the period of his life: Hall v. Stephens, 65 Mo. 670; 27 Am. Rep. 302, and cases cited. And, owing to this legal unity of husband and wife, it is said to be impossible, even by express words, to convey land to them so as to make them tenants in common with each other: Dias v. Glover, 1 Hoff. Ch. 71; Stuckey v. Keefe, 26 Pa. St. 397, and cases cited.
This being the case, the question arises, What 238 effect, if any, does a decree of divorce have upon the status of an estate by entirety? On this point Freeman observes: "At the present day, partition of property held in entireties may be obtained in connection with a decree of divorce, or when. ever, by a divorce, the legal unity of the cotenants has been destroyed. In other words, while the tenancy by entireties continues, no partition can be made; but when the tenancy has been converted into a tenancy in common, by the destruction of its peculiar and essential unity-namely, unity of person-it may, like other tenancies in common, be partitioned": Freeman on Cotenancy and Partition, 2d ed., sec. 444.
Bishop, when speaking of the same topic, says: “But all agree that this tenancy does not and cannot exist where there is no marriage. The consequence is that, when the mar. riage ends by divorce, it falls . . . . . In most of our states there are statutes, contrary to the common law, whereby two persons seised of an estate become presumptively, or, in the absence of special words, tenants in common. Therefore, it has been held, and the author believes justly, that the effect of a divorce where this legislation prevails is to render the parties tenants in common of what before they held by the entirety": 2 Bishop on Marriage, Divorce, and Separation, secs. 1650, 1651. This is the prevalent view: Harrer v. Wallner, 80 Ill. 197; Hopson v. Fowlkes, 92 Tenn. 697; 36 Am. St. Rep. 120; 1 Washburn on Real Property, 5th ed., 708; 17 Am. & Eng. Ency. of Law, 692, 693; Kirkwood v. Domnau, 80 Tex. 645; 26 Am. St. Rep. 770; Enyeart v. Kep
, ler, 118 Ind. 36; 10 Am. St. Rep. 94.
The result of the reasoning and teaching of the foregoing authorities is to this effect: That, as a legal unity of husband and wife was the only basis of the estate by the entirety,