Sturdy v. Jacoway , 19 Ark. 499 ( 1858 )

Mr. Justice Scott,

delivered the opinion of the Court.

The action was ejectment for several tracts of land contiguous. The plea was, not guilty. The verdict and judgment were for the appellee. The appellants are the children .and heirs at law of James Wilson, dec’d, who departed this life in the year 1845, in the State of Missouri, where he resided, and left real and personal estates at his death. 'The lands in controversy seem to have been the only property owned by him in Arkansas. Lemuel B. Harrell administered upon his estate in Missouri. Pirineas IT. White administered upon his estate in Arkansas. The latter procured an order of the Probate Court of Yell county, where the land was situated, for its sale, and it was sold by that authority, and purchased by the appellee, to whom deeds of conveyance were made by White, as administrator, under which the appellee held the possession of the premises. These facts he proved upon the trial, against the objection of the appellants, who, by their counsel, insist, for a multiplicity of supposed reasons spread upon the record by •bill of exception and greatly amplified in argument, that the entire- proceedings in the probate Court, as shown by its record, and all the matters therewith connected, touching the sale and purchase of the lands, set up by the appellee, were utterly void.

These proceedings consist of the sworn petition of White as administrator, also sworn to by a disinterested third person, stating, in reference to the administration in Missouri, that that ■was “ still progressing and unsettled, and that it (was) the wish of the said administrator in Missouri, and of the heirs and representatives of the said Wilson, that the lands in Yell county, Arkansas, should be sold in preference to the remaining estate of said Wilson-in Missouri, to enable said administrator to nay the outstanding debts against, said estate, and the expenses of administration,” and stating, in reference to the administration in Arkansas, “ that there (was) a probability of a demand of some five or six hundred dollars, or more, being allowed against said estate in' favor of John Rogers, to pay which and the ex-. penses of administration in Arkansas, there (were) no assets in hand.” And after particularly describing the lands, states in reference to them, that otherwise than by a sale, they “ cannot under present circumstances be made available to said Wilson’s estate, because said lands are wild, unimproved lands, yielding nothing by way of rent, or otherwise, to said estate: but, on the contrary, are a constant source of expenditure to meet taxes, etc., and that said estate would be benefited by their sale, because it stands greatly in need of the money which would proceed from said sale.” “ That the prospect for any material increase in the value of the lands was extremely remote — quite too distant to justify the withholding of them from sale on the grounds of any imaginary future benefit to be derived therefrom to the estate, when the same is at this time so much in need of money, and said lands a source of constant expense;” and expressing an unhesitating opinion that the true interest of the estate required the sale, prayed an order of the Court therefor on such terms as the Court might deem proper.

This petition appears to have been filed in the Probate Court at a regular term, and, afterwards, it expressly appears that the Court, in term time, judicially acted upon it; the record of whicn action, after reciting the substance of the petition, as above set out, proceeds further to recite the verification of the petition both by the administrator, and by the affidavit of Jesse Turner, a disinterested person of known good character, then proceeds as follows, to wit: “ And it further appearing that the notifications of this application have been given as required by law, and the Court having been fully advised what order to make in the premises, is of opinion that the prayer of said petition dught to be granted. It is therefore ordered that said administrator, Phineas H. White, preceed to sell said real estate at public vendue, etc.,” — the order proceeding to prescribe explicitly the mode of advertisement, terms of sale, and mode of conducting it, with reference to the statutory regulation for the sale of real estate, and that he report.

At the first regular term after the sale, a report thereof appears to have been made and filed, and to have been approved and confirmed by the Court, in which it appears that the ap-pellee was the purchaser of the land at the average price of one dollar and twenty-eight cents per acr.e.

It appears, also, that four years afterwards, to wit: in August 1853, at'a-regular term of tbe same Court, the administrator made another report of the same sale, in which with greater particularity, the time, place and mode of conducting said sale, and the previous advertisement thereof were stated, and in which it was also stated that all the tracts of land severally sold, brought two thirds of the appraised value thereof, except one eighty acre tract, -which brought one cent over two thirds of the appraised value thereof.

This report appears also' to have been examined and approved, and in all things confirmed'by the Court'.

The other'matters proven in connection* with these proceedings of the Probate Court, and touching the sale and purchase of the lands in' controversy, were, 1st. A letter of attorney from White, the Arkansas administrator, to Harrell, the Missouri administrator, authorizing the latter, for and in the name of the former, to superintend and conduct the sale of the lands then before duly advertised, at the time and place appointed, to execute deed to the purchaser, and to “ do any other thing necessary to perfect the sale in accordance with the order of Court and the law of the land, as fully in all respects as (he himself) could do if personally present:” 2d. A deed of conveyance, reciting in the name of White, adm’r, the order of Court for the sale of the lands, the publication of the notices for the sale, the appointment of Harrell as attorney in fact to superintend the sale, etc., the terms upon which the lands were offered, and the purchase of them by the appellee — the highest bidder therefor] which then proceeds as follows, to wit: “ Now therefore know ye, that I Lemuel B. Harrell, attorney in fact as aforesaid of Phineas H. White, administrator of the estate of James Wilson, deceased, by virtue of the power and authority in me vested as aforesaid, and in consideration, etc. * * * do hereby grant, bargain, sell and convey unto the'said Benjamin J. Jaco-way. etc. And I, the said Lemuel B. Harrell, do hereby covenant with the said Jaeoway, that I am fully empowered to make the aforementioned conveyance in the name of P. H. White, as administrator of the estate of James Wilson, dec’d, aforesaid, and for him the said White, I do hereby convey all the interests, to the said Jacoway, his heirs and assigns, in fee simple, that the heirs of the said Wilson may have in and to said several tracts of land, etc. Signed, Phineas H. White, [seal,] administrator of James Wilson, dec’d. By L. B. Harrell, attorney in fact.” 3d. Another deed of conveyance for the same lands executed by White himself, as administrator, to Jacoway, about four years afterwards, which contains more minute and ample recitals, and is unquestionable, as to the granting clause, and apparently, in every other respect.

The multitudinous questions as to irregularity, to which we have alluded, are presented not only by way of objections to the testimony, but also by way of instructions asked and refused. They are all, however, subordinate to, and are to be disposed of by the determination of a single point of law, or rather, by its application to the leading facts of this case; for perhaps it is too well settled now for any consideration of it as for determination. We mean that establishing the general rule, that the judgment of a Superior Court of competent jurisdiction as to a subject within its jurisdiction, cannot be attacked and impeached collaterally.

Because our Probate Courts received their powers by legislative enactment, in response to the constitutional provision in reference to them, it does not follow that their powers are limited and special, in the sense that the powers of inferior courts were so at common law. The latter derogated from the powers of the courts at Westminster, and were, therefore, strictly construed, upon the same principle that a statute derogating from common right, is still construed strictly. But in our system, judicial power is cotemporaneously parceled out by the constitution among the constitutional courts, ordained and provided for, without, in any sense, derogating from the powers granted to the others. Hence, although all courts of original jurisdiction are limited as to subjects of jurisdiction’ .their powers, as to the subjects committed to their jurisdiction, are general powers, as contra-distingnished from the special and limited powers of inferior courts, technically so at the common law, since they in no way derogate from the powers of other courts.

Our Probate Courts, by the constitution, were to “ have such jurisdiction in matters relative to the estates of deceased persons,” as should be prescribed by law. This jurisdiction is peouliar to these courts, as criminal and chancery jurisdiction is peculiar to other courts, but neither derogates from the powers of the others, and each, within its sphere, is to be considered as invested with full independent powers, respectively, as to the subjects committed to its jurisdiction.

Under our legislation, constitutional and statutory, not only is the personal estate of a deceased person committed to the jurisdiction of these courts, but the entire estate, both real and personal. There are provisions of law relating to the sale of property and estates, while in the course of administration, discriminating not only between real and personal estate in general, but also between particular species of personal property, as well as chattels real. They are all, however, but regulations prescribed by law for the guidance and government of these courts as to these matters, when in the exercise of the peculiar jurisdiction committed to them.

In the exercise of this jurisdiction, as has been often said here, the courts proceed in rmn. The first step of actual • jurisdiction, in this process, is the grant of letters testamentary, or of administration; although a potential jurisdiction over the entire estate of deceased persons vested in these courts at the moment of the death. When this step is taken, a public notice thereof is required to be given within thirty days thereafter. If the deceased died intestate and left no known heirs, a further and additional public notice is to be given. (Dig., chap. 4, p. 120, secs. 54, 55.

Thus, in the very outset, all persons interested in the things to be administered, have due notice in the mode usual in proceedings in rem. And there is a peculiarity in our administration system which makes this general notice more efficacious than in those States where the peculiarity does not exist, although their courts may also proceed in rem.; and that is that process from no other court can take and dispose of the thing while in process of administration, unless it had fastened upon it in the life time of the deceased. This peculiarity exists in several of the States, after the estate is reported to be insolvent; but here, it is so whether the estate be solvent or insolvent, and hence, parties interested in the estate of the deceased person have more especially to look to the proceedings of this court in referehce to their interest.

These courts, then, having the peculiar and exclusive jurisdiction of the estates of- deceased persons — -otherwise than as the chancery courts may exert, in some respects, a concurrent jurisdiction — they must, necessarily have jurisdiction of the incidents to the proper exercise of this jurisdiction; and whether upon the one or the other their judgment may be passed, it cannot be a nullity, however erroneous it may be, because within the scope of their legitimate powers. Hence, in Borden et al. vs. The State, 6 Eng. R. 519, it was held that, jurisdiction of the Probate Court appearing as to the subject matter, any irregularity in its proceedings — as for want of notice — was not a legitimate enquiry in a collateral proceeding, however legitimate it might be upon a direct proceeding as for error.

In the same case, upon the same general principle, it was held that these courts were in all things to be considered upon the footing of superior courts,, as contra-distinguished from inferior courts of special and limited jurisdiction at the common law. And this has been often since repeated and enforced in this Court. (Win. J. Marr. ex parte, 7 Eng. R. 86; Bennett et al. vs. Owen et al., 13 Ark. R. 179; Rogers et al. vs. Wilson et al., 13 Ark. R. 569; Barasien vs. Oden, 17 Ark. R. 124, and other cases.)

When these doctrines are applied to the leading facts of this case, it is easy to see, that the proceedings in the Probate Court, and those connected therewith, proven upon the trial, were not utterly void, although, possibly, in some respects, upon a direct proceeding, they might have been regarded as erroneous.

"Without any regard to the statute of 23d December, 1846, and the mode of proceeding thereunder for the sale of real estate by order of the Probate Court; but considered as a proceeding under the law as it existed in the year 1845 (Dig., ch. 4, secs. 145, 146, etc.,) the proceeding was certainly within the scope of the competent powers of the Probate Court, and was in several substantial respects strictly regular, when the legitimate presumptions in favor of the regularity of the proceedings of the Probate Court are indulged.

It was a proceeding by petition of the administrator, verified by his affidavit, for the sale of lands of his intestate for the payment of debts of the intestate and the expenses of administering his estate. It contained what may be considered a true and just account of all the debts of the intestate that had come to his knowledge, and so far as it was possible, the amount of assets in his hands to pay such debts, — which was none at all, with the exception of the land. He described the lands particularly, .and showed that nothing could be derived from them by rents, to meet the unpaid debts, the accruing taxes, and the expenses of administration. He stated that besides the debts to be paid in Missouri there was the probability of an Arkansas debt, of an amount equal to what ultimately proved to be about half the market value of the lands. He stated that there was, originally, property in Missouri, both real and personal, that was still in process of administration there, and that it was the wish of the administrator in that State, as well as of the heirs and representatives of the deceased, that the lands in Arkansas should be sold in .preference to the “ remaining estate in Missouri,” to pay the outstanding debts against the estate there, and the expenses of administration. Whether that “ remaining estate ” in Missouri was real or personal estate, was not stated: And it in no way appears, that there was any personal property whatever remaining any where, much less a sufficiency of such to pay the outstanding debts. The pre requisite notice of the intended application provided for by the statute (sec. 134). appears from the record to have been given, and it also affirmatively appears, that the Court was fully advised, after consideration, as to what order to make in the premises; and, in support of the order, it is to be presumed, the Court heard evidence.

Under such circumstances, to hold that the doings of the Court were a nullity, would be, to say the least of it, going a great way. Here was a subject matter legitimately and peculiarly within the jurisdiction of the Probate Court' — -an application by an administrator for the sale of lands of his intestate for the payment of his debts — brought regularly before the Court — by sworn petition, after due notice of the intended application shown to the Court — and that application considered and decided upon, and that too with a sufficient margin in the record for presumption that facts were established by evidence, not inconsistent with the petition, to fully authorize the judgment given — without any objection to it in point of correctness, much less of power.

The subsequent proceedings are equally unassailable, in the aspect in which we are considering them — that is, in reference to power and authority, and not as upon error for imperfections there cognizable. It was admitted upon the trial that the lands were duly appraised before they were offered for sale; that they were sold in separate tracts, and that each brought two-thirds of its appraised value. With regard to the sale having been superintended and conducted by an attorney in fact of the administrator, there was no margin for the exercise of any special personal confidence reposed in the judgment and discretion of the administrator, which might forbid it; because here, the time, place and manner of the sale, and terms of payment, and other matters connected therewith, had all been previously fixed by the order of Court, which had but to be executed according to these specific directions — and besides, when this attorney in fact was himself the administrator, of the domicil, of the deceased in Missouri — as he seems to have been — there is less reason to: apprehend fraud, as to any part of the transaction.

With regard to any supposed defects in either of the two deeds, if they existed, it is difficult to see how that could give any right of possession of the lands to the heirs, who had been divested of all such by the sale of them by the administrator, under a valid order of Court, and actual possession in pursuance thereof given to the purchaser.

But the whole case turns, as-we have already said, upon the point of law, that the order of sale in this instance being the judgment of a Court of competent jurisdiction upon a subject within the scope of its legitimate powers, that judgment in favor of the sale legally imports a necessity for it, so long as it remains unreversed, and, therefore, it cannot be attacked and held for nought collaterally upon any ground that the Court erroneously exercised its powers. Whether the Court properly or improperly exercised its powers over the subject, is not to be enquired of in this wise. (Martin's Lessee vs. Roach, 1 Harrington R. 486; McDade vs. Burch, 7 Geo. R. 559; Howard & wife vs.. Moor & wife. 3 Mich. R. (Gibbs) 226, and various other cases cited in brief of appellee’s counsel.)

In that view we think there is no error in the record, and the judgment will therefore be affirmed.