86 Mo. 253 | Mo. | 1885
— A temporary injunction was awarded in' this case, restraining the defendant, public administrator of Caldwell" county, from selling the land in question for the payment of a debt of the estate of Samuel Rogers, deceased. On final hearing the inj unction was dissolved. Rogers owned the half section of land now in question. He joined the confederate army in 1861, and died in Arkansas December 23, 1862. His death was not known in Caldwell county, the place of his resi
In May, 1875, Murphy made a deed of trust upon the land securing a large debt and by virtue of the deed of trust the land was sold, in .1877, to the plaintiff. He has sold part of the land with covenants, to protect which and the residue of the land he prosecutes this suit and this appeal. In 1867, after both of the sheriff ’s sales and after Murphy took possession of the land claiming in good faith to be the owner thereof, Hen-kins was appointed administrator of Rogers. Nothing appears to have been done by him. In 1880 the defendant, public administrator, procured an order to sell the land to pay a debt allowed in 1869 in favor of Woodson and another, amounting to something less than two hundred dollars.
The sheriff’s deed, made by virtue of the county court judgment, recites a sale at a term of the county
But assuming without deciding, that, because Murphy perfected his title by a deed from the widow, and the decree of title from the heirs, he is to be regarded as holding the title through them, and subservient to a proper administration of the estate, the question arises whether there is any limit of time within which lands may be sold for the payment of debts by an administrator, and if so, what is the limit. There is no statute which prescribes the time within which the administrator must procure an order for the sale of real estate to pay debts of the estate. Nor is there any analogy between an ordinary judgment, and an allowance by the probate court of these demands, as to the time within which they may be enforced. Nor can the statute of limitations with respect to personal actions have any application. A proceeding to sell real estate is but a step to be taken in the course of the proper administration of the estate. The Chancellor in Mooers v. White,
By our law the debts must be exhibited for allowance within two years from the grant of letters of administration. If the personal estate be insufficient to pay the debts, the administrator may disclose that fact by petition and have an order for the sale of real estate. If he fail to make such application any creditor may do so, upon giving the administrator the prescribed notice. In short, the whole administration law contemplates that the affairs of the estate will be wound up as speedily as practicable. If the administrator is guilty of delay the creditors are armed with ample power to have him removed, or proceed themselves. In reason and justice there must be a limit of time in which this order of sale may be taken. As there is no statute upon the subject it must be done within a reasonable time. What that is, must in this, as in all cases where the sale is applied for, be determined from all the circumstances, and each
It may be said it was the duty of Murphy through whom the plaintiff claims, to see that the administration was closed at an earlier day. It is a circumstance worthy of consideration that he all the while claimed by a title, which, if good, was paramount and superior to the demands here in question. It must be that the administrator and creditor also supposed his title was superior. But if he is in no better position than the heirs and purchasers from them, the language used in Estate of Crosby, .supra, is quite pertinent, which is: “ Nor does the fact that the heirs do not call for an accounting in the probate court, and for sale of real estate, if necessary, constitute any excuse for the delay of the administrator or creditor. The proceeding for the sale of real property is hostile to the heirs, and there is no principle which makes it their duty to initiate a suit adversely to themselves, the failure to commence which by the proper party may result to their benefit.”
Here the administrator was appointed in 1867. The debt was allowed in 1869. It would seem there was no personal property to be administered upon, and nothing to call for any delay. In 1874 an order was made upon the report of Herkins showing no assets, that the administration be “ discontinued until such time as the court may order the same to be proceeded with.” In 1877, ten years after the grant of letters, this order is set aside and Herkins was relieved and the estate ordered into the •custody of the then public administrator, which order was also revoked in that year. In 1880 the estate was ordered into the hands of the defendant on motion of Woodson, the then owner of the demand, whereupon the order of sale in question was procured. Why this delay of twelve or thirteen years, when there appears to have been but a single demand, and no personal property
The sale, if made, cannot be said to be' void on its-face, and a deed made pursuant thereto will cloud and depreciate the plaintiffs title. The power of a court of equity to prevent this cannot be disputed. The contention is, however, that this resistance should have been made to the order of sale in the probate court and that it cannot be made elsewhere. ' It does not appear that the plaintiff had actual notice that such an order had been applied for. The notice is by publication. .But if he was bound to take notice of such proceeding, at this late day, and could have appeared and resisted the order in the probate court, we think he may still have the remedy by injunction in the circuit court. His claim for relief addresses itself to a court of equity. The circuit court is the most appropriate tribunal to hear and determine such questions. The pleadings and procedure in the probate court are all not so well adapted to a full investigation of such equities. The circuit-court has the power to grant full relief, and, under all the circumstances of this case, the plaintiff might well appeal to that court for relief.
The judgment, including that assessing damages on the bond, is reversed and the cause remanded, with directions to the circuit court to make the temporary injunction perpetual.