The opinion of the court was delivered by
Valentine, J.:
statement of the case-This was an action brought by John Hosick, administrator de bonis non of the estate of David N. Mitchell deceased, against O. B. Taylor, for $700 and interest. The principal facts upon which the action is founded are substantially as follows: David N. Mitchell, a resident an<^ Pr0Perty holder, died intestate in Leavenworth county March 7th, 1868. On June 24th next following the probate court of said county appointed John Hosick administrator de bonis non of the estate of said Mitchell. On September 30th 1869, the probate court, on the application of the administrator, ordered certain real property belonging to the estate, among which was the undivided-half of lots 29 and 30 in block 78, in Leavenworth City, to be sold for the purpose of paying certain debts due from the estate which could not otherwise be paid. In pursuance of said order said lots were sold November 6th 1869, [525]*525P. T. Meagher being the purchaser, and the sale was confirmed on the same day. But Meagher neglecting and refusing to pay the purchase-money, the probate court on November 11th 1869, on the application of the administrator, ordered the property to be again sold. The property was this time sold to O. B. Taylor, December 18th 1869, for $700. On the same day the sale was confirmed by the probate court, and immediately the administrator executed a deed to Taylor for the property and delivered it to him on the same'day; but Taylor has never yet paid the purchase-money for the property. Hence this action was brought, and is now prosecuted by Hosick as administrator against Taylor for the recovery of said purchase-money. At first Hosick filed his petition in the court below against Taylor alone, but afterward he filed an amended petition making both Taylor and Meagher parties defendant. Taylor filed an answer to this amended petition, setting up new matter. The court gave Hosick and Meagher until January 20th 1873, to reply to this answer. They did not however reply within that time. Indeed, Meagher never filed any pleading of any kind, except a demurrer to the plaintiff’s petition, which demurrer was sustained by the court. On March 5th 1873, the case was called for trial. Hosick’s petition had not been amended since the court 'had sustained Meagher’s demurrer thereto, and neither Hosick nor Meagher had repliéd to Taylor’s answer. The court then dismissed the action as against Meagher, and both Hosick and Taylor excepted. The court then allowed Hosick to file a reply to Taylor’s answer, verified by affidavit, and Taylor excepted. The court then proceeded with the trial of the case, over the objection of Taylor, and Taylor excepted. During the trial Taylor raised the following questions: That Hosick’s letters of administration were not rightfully granted, and therefore all that Hosick had done as administrator was void; that the notice of the application for the sale of said property to pay debts was insufficient, and therefore that all the subsequent proceedings connected therewith, including both sales, were [526]*526void; that the first sale was valid and subsisting when the order for the second sale was made, and therefore that the order for the second sale and the second sale itself were both void. All the rulings of the court below on these various questions were against Taylor, to which rulings Taylor duly excepted, and now assigns the same for error in this court.
„ „ , wayíá n°eoSi eaiy party. I. Although Meagher may have been a proper party to this action, we do not think that he was in any sense a necessary party. He has no possible interest in the $700 in controversy between Hosick and Taylor; and there is no possible defense which Meagher alone, or Meagher anc[ Taylor together could' interpose to defeat Hosick’s claim, which Taylor alone could not with at least equal propriety and equal effect interpose.
2 Discretion of pieading^cml’ °f tnne. II. The court in its discretion had a right to allow said verified reply to be filed after the time for filing the same had elapsed, and also in its discretion, as we think, had a right to immediately proceed with the trial. The reply was only a general denial, simply putting in issue tke truth of Taylor’s answer; and if Taylor was then as ready to prove the facts alleged in his answer as he ever could be, it would not seem that there could be múch reason for him to complain of the ruling of the court. But he did not claim that he could ever be any better prepared to prove his answer than he then was. Nor did he claim that he could ever be better prepared to disprove the allegations of the plaintiff’s petition than he then was. Indeed, he did not even claim that he could ever be any better prepared in any respect for trial than he then was. He gave no reason why he did not wish to proceed immediately with the trial. Hence we think there was no abuse of judicial discretion in proceeding immediately with the trial.
III. The probate court unquestionably had a right to appoint some person administrator. The facts already stated gave the court jurisdiction. But it is claimed that the court should have appointed a brother, sister, or creditor of the ’deceased; or that the court should have cited all the broth[527]*527ers, sisters, and creditors of the deceased to appear, and take or renounce the administration, before the court could appoint Hosick. As the brothers and sisters of the deceased were his nearest kin living, the court should have done as Taylor claims; and if the court did not do so, then the brothers, sisters, or creditors of the deceased would, in a proper proceeding, have a right to complain. But still these are not jurisdictional matters. Even if the probate court erred in the appointment of Hosick, still the appointment is valid until set aside by proper authority, and in a proper proceeding. The appointment cannot be attacked collaterally, as Taylor now attempts to do, and especially not by himself, who is neither a relative nor a creditor of the deceased. Letters of administration can be attacked collaterally only when the probate court for some reason has no jurisdiction to make the appointment, and never when the court has merely committed an error by appointing one person (who is eligible) when the court should have appointed some other person.
4. notice of application to seii lands. IY. It is claimed that the notice of the application for the sale of the said property was insufficient, because, as Taylor claims, it did not follow the order made by the J probate court. The order was, cc that all persons interested in said estate be notified of said application by publication of a notice in some newspaper,” etc. The notice published under this order was directed to “all persons interested in the estate of David N. Mitchell, deceased,” etc. Taylor claims that the notice should have given the names of all the persons to whom it was directed. The probate court however considered this notice to be sufficient, and in pursuance thereof ordered both the first and the second sale thereunder. We therefore think it was sufficient. (General Stat.,. 455, ch. 37, §118.)
Y. We think the order of the probate court directing that the property should be sold a second time was valid. It is claimed that said order was and is void, first, because the first sale was valid, and because the probate court has no [528]
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The opinion of the court was delivered by
Valentine, J.:
statement of the case-This was an action brought by John Hosick, administrator de bonis non of the estate of David N. Mitchell deceased, against O. B. Taylor, for $700 and interest. The principal facts upon which the action is founded are substantially as follows: David N. Mitchell, a resident an<^ Pr0Perty holder, died intestate in Leavenworth county March 7th, 1868. On June 24th next following the probate court of said county appointed John Hosick administrator de bonis non of the estate of said Mitchell. On September 30th 1869, the probate court, on the application of the administrator, ordered certain real property belonging to the estate, among which was the undivided-half of lots 29 and 30 in block 78, in Leavenworth City, to be sold for the purpose of paying certain debts due from the estate which could not otherwise be paid. In pursuance of said order said lots were sold November 6th 1869, [525]*525P. T. Meagher being the purchaser, and the sale was confirmed on the same day. But Meagher neglecting and refusing to pay the purchase-money, the probate court on November 11th 1869, on the application of the administrator, ordered the property to be again sold. The property was this time sold to O. B. Taylor, December 18th 1869, for $700. On the same day the sale was confirmed by the probate court, and immediately the administrator executed a deed to Taylor for the property and delivered it to him on the same'day; but Taylor has never yet paid the purchase-money for the property. Hence this action was brought, and is now prosecuted by Hosick as administrator against Taylor for the recovery of said purchase-money. At first Hosick filed his petition in the court below against Taylor alone, but afterward he filed an amended petition making both Taylor and Meagher parties defendant. Taylor filed an answer to this amended petition, setting up new matter. The court gave Hosick and Meagher until January 20th 1873, to reply to this answer. They did not however reply within that time. Indeed, Meagher never filed any pleading of any kind, except a demurrer to the plaintiff’s petition, which demurrer was sustained by the court. On March 5th 1873, the case was called for trial. Hosick’s petition had not been amended since the court 'had sustained Meagher’s demurrer thereto, and neither Hosick nor Meagher had repliéd to Taylor’s answer. The court then dismissed the action as against Meagher, and both Hosick and Taylor excepted. The court then allowed Hosick to file a reply to Taylor’s answer, verified by affidavit, and Taylor excepted. The court then proceeded with the trial of the case, over the objection of Taylor, and Taylor excepted. During the trial Taylor raised the following questions: That Hosick’s letters of administration were not rightfully granted, and therefore all that Hosick had done as administrator was void; that the notice of the application for the sale of said property to pay debts was insufficient, and therefore that all the subsequent proceedings connected therewith, including both sales, were [526]*526void; that the first sale was valid and subsisting when the order for the second sale was made, and therefore that the order for the second sale and the second sale itself were both void. All the rulings of the court below on these various questions were against Taylor, to which rulings Taylor duly excepted, and now assigns the same for error in this court.
„ „ , wayíá n°eoSi eaiy party. I. Although Meagher may have been a proper party to this action, we do not think that he was in any sense a necessary party. He has no possible interest in the $700 in controversy between Hosick and Taylor; and there is no possible defense which Meagher alone, or Meagher anc[ Taylor together could' interpose to defeat Hosick’s claim, which Taylor alone could not with at least equal propriety and equal effect interpose.
2 Discretion of pieading^cml’ °f tnne. II. The court in its discretion had a right to allow said verified reply to be filed after the time for filing the same had elapsed, and also in its discretion, as we think, had a right to immediately proceed with the trial. The reply was only a general denial, simply putting in issue tke truth of Taylor’s answer; and if Taylor was then as ready to prove the facts alleged in his answer as he ever could be, it would not seem that there could be múch reason for him to complain of the ruling of the court. But he did not claim that he could ever be any better prepared to prove his answer than he then was. Nor did he claim that he could ever be better prepared to disprove the allegations of the plaintiff’s petition than he then was. Indeed, he did not even claim that he could ever be any better prepared in any respect for trial than he then was. He gave no reason why he did not wish to proceed immediately with the trial. Hence we think there was no abuse of judicial discretion in proceeding immediately with the trial.
III. The probate court unquestionably had a right to appoint some person administrator. The facts already stated gave the court jurisdiction. But it is claimed that the court should have appointed a brother, sister, or creditor of the ’deceased; or that the court should have cited all the broth[527]*527ers, sisters, and creditors of the deceased to appear, and take or renounce the administration, before the court could appoint Hosick. As the brothers and sisters of the deceased were his nearest kin living, the court should have done as Taylor claims; and if the court did not do so, then the brothers, sisters, or creditors of the deceased would, in a proper proceeding, have a right to complain. But still these are not jurisdictional matters. Even if the probate court erred in the appointment of Hosick, still the appointment is valid until set aside by proper authority, and in a proper proceeding. The appointment cannot be attacked collaterally, as Taylor now attempts to do, and especially not by himself, who is neither a relative nor a creditor of the deceased. Letters of administration can be attacked collaterally only when the probate court for some reason has no jurisdiction to make the appointment, and never when the court has merely committed an error by appointing one person (who is eligible) when the court should have appointed some other person.
4. notice of application to seii lands. IY. It is claimed that the notice of the application for the sale of the said property was insufficient, because, as Taylor claims, it did not follow the order made by the J probate court. The order was, cc that all persons interested in said estate be notified of said application by publication of a notice in some newspaper,” etc. The notice published under this order was directed to “all persons interested in the estate of David N. Mitchell, deceased,” etc. Taylor claims that the notice should have given the names of all the persons to whom it was directed. The probate court however considered this notice to be sufficient, and in pursuance thereof ordered both the first and the second sale thereunder. We therefore think it was sufficient. (General Stat.,. 455, ch. 37, §118.)
Y. We think the order of the probate court directing that the property should be sold a second time was valid. It is claimed that said order was and is void, first, because the first sale was valid, and because the probate court has no [528]*528power in any 'case to order a second sale to be made; second, because no notice of the application for the order was previously given to Meagher; third, because the first sale was not set aside before the second sale was ordered, but is still subsisting and in full force.
5. power of prosáfasidead-0 sale. First: It must be recollected that Meagher, the purchaser at the first sale, never paid the purchase-money. The administrator substantially reported this to the probate court when he made his return of the sale. The administrator did not report that “the purchase-money had been paid,” but on the contrary reported, “that the parties are now ready to pay said sum of money upon delivery to them of deeds,” etc., plainly showing that the purchase-money had not yet been paid when he made his report. And upon this return the probate court confirmed the sale. Now a court that has power to confirm a sale, as the probate court in this state has, (Gen. Stat., 457, § 132,) we should think undoubtedly has the power to refuse to confirm in cases where the sale should not be confirmed; and when a court has erroneously or unadvisedly confirmed a sale, it undoubtedly has the power to set the confirmation aside; and when the court has rightly either refused to confirm a sale, or has set the confirmation aside, it undoubtedly has the power to order another sale. These propositions seem to us self-evident. The court in every case undoubtedly has the right to treat the sale as not a completed sale, or indeed substantially as no sale, until the purchase-money has been paid or tendered. And if the court should at any time before that time be of the opinion that the sale should be set aside, it would undoubtedly have the power to set it aside merely for reason that the purchase-money had neither been paid nor tendered. Until the purchase-money is paid or tendered, the whole matter probably rests in the discretion of the court; and the court may as it chooses (exercising a sound judicial discretion,) hold the sale as valid, or set it aside.
Second: No notice was ever given to Meagher, or to any one else, that the sale would be confirmed; and as Meagher [529]*529never completed his purchase by paying or offering to pay the purchase-money, he had no right to expect, certainly none to demand, that the sale should ever be confirmed. He forfeited his rights by refusing to pay the purchase-money. And as the sale was confirmed without notice to Meagher, and as he had no right to ask that it should be confirmed, it might properly be set aside without any notice being given to him. Of course, if Meagher had at any time, before or after the confirmation, paid or tendered the purchase-money, then the sale could not have been set aside without notice to him, and without some good reason for setting it aside being given. In cases of this kind»we think it is better for the administrator and probate court to have the power to either set aside the sale and sell again, or to sue the purchaser for the purchase-money, as they may think best.
Third: We think that the first sale was in fact set aside. It is true, that it was not done in very explicit terms, but the petition of the administrator asked that the sale should be set aside and a new sale ordered, and the court in pursuance of said petition ordered the new sale.
The judgment of the court below is affirmed.
All the Justices concurring.