Cunningham v. Anderson, 107 Mo. 371

Cunningham v. Anderson

107 Mo. 371 | Mo. | 1891

Sherwood, P. J.

This action of ejectment for lands in Pemiscot county grows out of two administration sales or attempted sales of such lands, the manner of making which and other attendant circumstances will hereinafter sufficiently appear.

*374The lands belonged to the estate of Jas. R. Edsall. His widow, Charlotte, became the administratrix, and upon her application the land in controversy was duly ordered to be sold. Whether the order embraced other lands does not appear, and every step taken down to, and inclusive of, the order of sale being in conformity to law, and the land aforesaid correctly described, but in the notice of sale the land was misdescribed, that is the number of the section was given as section 13, instead of section 31. This order of sale, it seems, was made in 1876, and at the sale which occurred in the next year the land was cried according to such misdescription and sold in that way, though it was mentioned, also, by the auctioneer at the sale as the “Mound farm,” a name by which it was commonly known. Anderson, the defendant, bought the land at the sale, paid the price of his bid, $400, and received a deed duly acknowledged before the probate judge ; but this deed, as well as the report of sale, still kept up the misdescription aforesaid, by locating the land in section 13, instead of section 31. This sale was approved in open court, and such approval was entered on the minutes ; but some days after court adjourned, and when entering the matter of record the mistake was discovered, and an order made in vacation disapproving the sale, and a similar entry was made on the report based upon the ground that the notice of sale did not comply with the order of the court, and signed by the probate judge, but this was after the deed was made and delivered and payment of the purchase money, which money was applied in the payment of the debts of the deceased, Franklin Cunningham, one of the creditors, receiving, it seems, a portion of such disbursements. Anderson entered upon the lands purchased, and has remained there ever since, making valuable improvements by clearing and fencing lands, paying taxes, etc.

Mrs. Edsall made final settlement and resigned her administration, and there still remaining debts unpaid, *375said Franklin Cunningham was appointed administrator de bonis non. This was in 1879 or 1880. On being qualified he presented his petition for the sale of all of the lands for the payment of debts, and notice was duly given under order of the court for the sale of all of the lands of the estate for the payment of debts; but when the court came to make the order of sale the land in controversy was excluded from such order, and the lands embraced in the order were sold by Cunningham. A year or so afterwards Cunningham ágain applied by original petition for the sale of the land in controversy; but the probate court refused to make such order on two grounds : First, because there had been no order of publication made ; and, second, because the records showed the land had already been sold, and payment made therefor, etc.

About a year after this application was denied, from which no appeal was taken, Cunningham made-another similar application for the sale of the land in litigation, but this application was denied on similar grounds; but on appeal taken to the circuit court the judgment of the probate court was reversed, and that court ordered to make an order of sale, which it did,, but without any order of publication, and thereupon the land was sold and deed made to the plaintiff, the purchaser. Aside from the point of lack of order of publication the proceedings resulting in the last sale were legal. In 1882 the records of the probate court were destroyed by fire, and the last sale took place in 1883, and, the report of the sale being approved, Cunningham made a deed to plaintiff in 1885.

I. Though the order of publication made in 1879 on the application of Cunningham was sufficiently comprehensive to embrace all the lands owned by the deceased at his death, yet the probate court refused to order the sale of the land in controversy, and the power and jurisdiction of the probate court was exhausted and *376■spent its force in making the order of sale which followed the order of publication. Under the terms of section 149, Revised Statutes, 1879, it was within the judicial discretion of the court to “make an order for the sale of such real estate or any part thereof ; ” but it declined to make an order sufficiently comprehensive to embrace the land in suit. When all parties in interest are notified by publication to appear and show cause, etc., and they do appear in obedience to such notification, and the probate court makes an order of sale directing that only a portion of the land of the estate be sold, they may well presume that this land thus ordered to be sold will be sufficient for the payment of debts; or, if not sufficient, that additional notice will be given, and this the law requires. 2 Woerner Am. Law of Admin. 1049-1052; Ackley v. Dygert, 33 Barb. 176.

II. If the order of sale in the present instance had been as comprehensive as the order of publication a very different question would be presented, one not necessary to be now considered.

As no order of publication was made, the probate court acquired no jurisdiction to order a sale of the land in suit; and this conclusion is not at all affected in consequence of the judgment of the circuit court directing that an order of sale be made. It was "beyond the power of the circuit court to make such an order; and by that mere order no jurisdiction could be conferred where none existed before. Upon this branch of this cause, and for the reasons given, we hold that no title was conveyed to plaintiff by reason of the sale made by the administrator de bonis non.

III. It is claimed by plaintiff, that notwithstanding the facts aforesaid, that the order approving the sale made by the administrator de bonis non cured any previously occurring defective proceedings, if any there were. This is a misapprehension. While perhaps an order of approval may cure certain irregularities, it *377cannot by any retroactive effect impart validity to a void sale. Farrar v. Dean, 24 Mo. 16.

IY. Again, even if it be true that the defendant gained no title, either legal or equitable, by his purchase owing to the misdescription of the land, yet he undoubtedly acquired a clear equity to be reimbursed for his payment of the purchase money-which went in extinguishment of the debts of the estate, and for taxes paid, and improvements made, if made in good faith, and until thus reimbursed the plaintiff' in any event should not in equity and good conscience be permitted to recover the land in suit, even if he had acquired the legal title. Schafer v. Causey, 76 Mo. 365, and cases, cited; 2 Woerner Am. Law Admin. 1080, 1081.

But it has been held that if the misdescription were merely such as not to mislead purchasers, that this, would not prevent the passing of the legal title. 2 Woerner Am. Law Admin. 1052, 1053. It is unnecessary, however, to rule these points definitely at the present time, as the defendant is not appealing.

The conclusion from the premises is that the judgment be affirmed.

All concur.