Shawhan v. Loffer , 24 Iowa 217 ( 1868 )

Beck, J.

Although the principles involved class of cases are well settled by frequent decisions, it is not at all strange that we are so often called upon to apply them in the adjudication of titles. It is accounted for by the great and often rapid increase in the value of lands. An executor or guardian, in good faith and, as it seemed at the time, for the best interests of all concerned, was empowered to sell the lands of the estate or of his ward. The lands were of inconsiderable value and were sold for what was, at the time, a fair and honest price.

A few years increases their value many hundred per centum, and, by the erection thereon of valuable buildings, and the planting of fruit and ornamental trees, what was unproductive and uninviting prairie of little value, becomes a beautiful and enticing farm, a fortune to its possessor. It is not wonderful that heirs and wards arriving at majority, and seeing property once their’s, now of such great value and so inviting, should be anxious to find something in the proceedings under which their property was sold that will render the sale void and restore to them the lands which they are ever ready to believe were unlawfully taken from them.

It is not pretended in the case at bar, that, in the sale of the lands in question, there was fraud or any improper practice on the part of the court, the executor, the purchaser or any one concerned. The sale was made in good faith, for a price equal to the real value of the lands, for reasons appearing sufficient and for honest purposes. It is to be presumed that the money paid for the portions of the land claimed by plaintiffs was properly applied for their education and sustenance, or paid to them as they became of age.

There is no pretense, that the thing which equity and the law does most abhor — oppression of the fatherless infant — was attempted toward them. They rely upon rigid, unrelenting rules of law, and sternly, coldly, seek advantage through them, over upright dealings and honest purposes of others. While the rules of law cannot be deviated from, even to avert such results, yet it may be said, to the honor of our system of jurisprudence, they seldom lead thereto.

In proceeding to examine the objections made to the validity of defendant’s title, they will be noticed, not in the order in which they are made in the argument of the attorney presenting them, but in that order in which, it would seem, they naturally arise.

1. dower-aaofenndCTCode °f i85i. 1. It is urged, by plaintiffs, that the County Court had no authority, under the Code of 1851, to set apart or Petition dower; that, inasmuch as the Dis-to'ict Court ha(l jurisdiction in such cases, an¿ no p0wer was expressly given by statute to the County Court, which was a court of limited and inferior jurisdiction, the jurisdiction of the District Court was exclusive. We are clearly of opinion, that section 1394 conferred the power upon the County Court. It provides, that dower shall be set apart by the executor “under the direction of the court.” What court is meant ? Evidently the County Court. The context clearly indicates this. The chapter in which this section is contained, treats of the powers and duties of the County Court. It was the only court clothed with power to direct the executor in the discharge of his duty. The sections immediately following the one under consideration give minute direction as to the manner of setting apart the dower, which, in some respects, would have been quite unnecessary had it been the intention of the legislature, that the District Court should have executed the power. The fact of the County Courts having uniformly exercised the jurisdiction, and no question as to their right so to do has ever before been made, should have some weight in determining in favor thereof. The jurisdiction of the County Court to admeasure 'dower under the Revision, sections 2477 and 2426 to 2435, which are (except section 2477), a reprint of corresponding provisions of the Code of 1851, is recognized in Starry v. Starry (21 Iowa, 254). It will be remarked, that section 2477, of the Revision, uses language conferring power upon the court and executor to set apart dower, copied from section 1394, of the Code of 1851. We hold, therefore, that the County Court did have jurisdiction to admeasure dower.

2. repeal of on commenced. II. It is contended, that the County Court had no jurisdiction of the subject-matter whereon it was called to act, because no petition was filed which would hito exercise the power of the court, admjtted, that a petition, which-appears in every respect sufficient, was filed May 9, 1853, but its effect is attempted to be destroyed by the following argument:

The referees made their report June 16, 1853, the order to sell was made July 13,1853. Sections 1394 and 1404 were repealed July 1, 1853, without any saving clause preserving suits and proceedings already instituted. Tbe order to sell was made under tbe law of July 1,1853, and under that law no petition'was filed. That there should have been a new petition filed under the law of 1853 is the conclusion arrived at by plaintiff’s attorney.

The ready answer to this is, that, under section 26 of the Code of 1851, the repeal of the sections in question did not affect the right of the widow to dower as provided therein, nor the proceedings commenced to set it apart thereunder. The right as well as the remedy survived. See Innskeep v. Innskeep, 5 Iowa, 204; Burk v. Barron, 8 id. 135.

The petition of May 9, 1853, gave the court jurisdiction of the subject-matter, concerning which its powers were invoked, which was not lost by the repeal of said action.

3. JmtismcuvTnotfce and service: collatorai attack, III. It is claimed, that the County Court did not acquire jurisdiction of the persons of the plaintiffs in this suit, because it is not shown in the record, that notice was personally served on them, , and because it appears they were not made parties by name to the proceedings. The decisions of this court, in cases involving principles applicable to this point, are uniform in recognizing the doctrine, that if it appears there was a notice, though it be defective, or the service thereof be imperfect, neither, in strict compliance with the directions of the statute, and the coürt determined in favor of the sufficiency of such notice and service, which is shown upon the record, even though such determination was erroneous, the judgment of the court will not be held void in a collateral proceeding. It is competent for the court to determine the sufficiency of the notice and service.

If such determination be erroneous, it should be corrected by appeal, and cannot be reserved as a ground of attack upon the judgment in a collateral proceeding. Cooper v. Sunderland, 3 Iowa, 114; Morrow v. Weed, 4 id. 77; Wade v. Carpenter, id. 361; Little v. Sennet, 7 id. 324; Frazier v. Steenrod, id. 339; Long v. Burnett, 13 id. 28; Pursley v. Hays, 22 id. 11.

Admitting, that the heirs should have been made parties by name, and that the notice should have been so addressed to them, yet, as the sufficiency of all the proceedings was determined by the County Court in the final order or decree, the objection cannot be urged in this collateral action.

It appears, that a sufficient application was filed by the widow in the County Court, averring sufficient facts to call into exercise the power conferred by law on that court; and that there was a notice and service thereof; the court solemly adjudged, in the final decree approving the deed of the executor, that all the proceedings were regular, and this was a matter properly before the court at that time for adjudication, and of which it was competent to adjudicate. It was the duty of the court, then, to inquire whether the proceedings the law required were regularly had. It adjudged they were. Exercising presumptions in favor of the regularity of the proceedings of the court, they must be taken as regular and sufficient, and the decree of the court ordering a sale of the lands, and finally confirming the deed, considered as an absolute verity, not to be contradicted or impeached.

5_oourts of superiorajurisdiction. It is quite unnecessary to quote authorities which sustain the principle, that proceedings of courts of general aQd superior jurisdiction, unless upon their face manifestly void for want of jurisdiction, cannot be collaterally contradicted or impeached, and must be taken as conclusive. This doctrine is nowhere denied, and it is also an admitted principle, that, in the case of an inferior court, if the jurisdiction sufficiently appear, its judgments and decrees stand upon the same footing as those of superior courts.: Cooper v. Sunderland, 3 Iowa, 125, 126; 1 Smith’s Leading Cases; Hare and Wallace’s notes, 703 and 710.

The foregoing principles applied to the facts, as presented by the record, are decisive of this case.

Many objections are made and urged against defendants’ title; all are disposed of by the application of the above general doctrines. Inasmuch, however, as they are presented with apparently great confidence and urged with ability, arid their disposition may, in a degree, aid to settle the law concerning this class of judicial sales (a result very much to be desired), notice will be made of some of the more important ones.

6 pro0f of Btencttono?' statute. It is contended that the notice provided for under section 1398, Code of 1851, should have been in writing, served personally upon the heirs, and proof of such service made by affidavit. Sections 24.93 an(j 2428, Code, 1851,. are relied upon to sustain this view. The first named section directs, that, “ when not otherwise provided, notices required by law must be in writing and served as herein after provided,” personal service being directed 'by the following section of the chapter. The other section directs, that the posting up or service of any notice or other paper required by law may be proved by affidavit of any competent witness attached to a copy of said notice or paper, and made within six months of the time of such posting up.” Without determining, that, under the provisions of these sections, the notice contemplated in section 1398 was required to be personally served, it is clear that the proof of such service was not necessarily confined to a written affidavit. The object of this section is not to make an affidavit the exclusive means of proving a service, but simply to provide that such proof shall be sufficient. Were the view taken by plaintiffs’ attorney correct, such, service could only be proved in the manner pointed out in the section. The returns of officers, the written admissions of parties, and many other proper ways of showing service, would be insufficient proof thereof. We cannot hold such to be the meaning of this provision. When the question was before the County Court as to the proper service of the notice upon the heirs, it was competent to prove the same, by the oath of a witness, or in any other way recognized by the rules of evidence. If the benefits of presumptions in favor of- the regularity of the proceedings of courts are to be extended in this case to the record of the County Court, it. will be presumed that proper proof of such service was made. On the other hand, if the County Court is a court of limited and inferior jurisdiction and no such presumptions can be indulged, yet, as the service of the notice is not required to be entered of record, it might not be difficult to show that it would be proper to prove the same aliunde, as was done on the trial in the court below. 1 Smith’s Leading Cases (Hare and Wallace), American Notes on case of Crepps v. Durden, 703, and 2 Philips on Ev. (Cowen and Hill’s and Edwards’ notes) 157, 158; Cooper v. Sunderland, 3 Iowa, 127; Harrington v. Brown, 5 Pick. 519; Saltonstall v. Riley, 28 Ala. 169.

7. executor AND AD?IINIStrator: appointment presumed. It is urged that the record does not show that Reeves, who acted as executor at the time of the appointment of the referees and when the sale was made, had 1 mi 3 _ been appointed by the court, lhe record of x . . , , his appointment is not given, but he is referred to and mentioned throughout the record of the County Court as the executor; he makes a report of the sale as the executor, and he finally resigned as such. Surely all this is ¡prima facie sufficient to satisfy us that he was in fact the executor, duly appointed, and, being so recognized by the County Court, there can be no doubt, this not being a jurisdictional question, that the rule, omnia praesumunter rite esse aeta, will preclude denial of the fact here.

8. — resignation: power of successor, It is claimed, that, inasmuch as, upon the resignation of the executor Beeves, an executor de "bonis non was appointed, who executed the deed, it is, therefore, void, because an executor de boms non can only be appointed upon the death of a former executor, and that there is no privity between the first executor and tire executor de bonis non. The record of the County Court, in the decree appointing tbe executor Lowe (after tbe resignation of Beeves), denominates him executor de bonis non. Without examining what the law may be elsewhere, we are clearly of tbe opinion, that, upon tbe resignation of tbe executor, the person appointed to the office as successor, whatever may be the peculiar designation applied to him, succeeds to the duties and obligations, as well as the powers of tbe first executor, and can complete the performance of the duties and discharge of obligations first assumed by the original executor, without delay or interruption. Such seems to he the provisions of sections 1301 and 1308 of -the Code of 1851. This doctrine was recognized in Wade v. Carpenter et al. (4 Iowa, 361).^*

It is quite unnecessary to consider other objections made to defendant’s title, as the case is disposed of upon the doctrine above announced. Neither is it necessary to. discuss the effect of the statute of limitations in its application to the case at bar, nor the special limitation provided by section 1356, of Code of 1851, for actions to recover real estate sold by executors, which is so ably discussed in Pursley v. Hays (22 Iowa, 11).

The judgment of the court below will be reversed as to the decision against defendants, and in favor of plaintiffs, Sarah E. and Hannah O. Shawhan, and affirmed as to the decision in favor of defendant and against Greorge W. Shawhan.

A procedendo will issue accordingly.

* It is not improper to remark, for tbe benefit of the reader who may not be familiar with our statutes, that, by a provision of the Code of 1851, section 26, the term "executor ” is extended to and includes administrator, and is so generally used. This peculiarity was copied into the Revision of 1860.

It must be confessed that the wisdom and necessity of dispensing with the use of a word so well understood as the term “ administrator,” and destroying the meaning of the other equally familiar word, “ executor,” has never been satisfactorily explained. The peculiar pride of the law as a science is its possession of terms enabling an exact, direct and concise expression of ideas. Tbis statutory innovation in the language of the law is without any known benefit and attended with much inconvenience,