107 Mo. 371 | Mo. | 1891
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.
Mrs. Edsall made final settlement and resigned her administration, and there still remaining debts unpaid,
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
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
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.