Hall v. Callahan

| Mo. | Oct 15, 1877

Henry, J.

— That a conveyance in fraud of creditors cannot be impeached by the grantor, or his administrator, is well settled in the State by the cases of McLaughlin v. McLaughlin, 16 Mo. 242" court="Mo." date_filed="1852-03-15" href="https://app.midpage.ai/document/mclaughlin-v-mclaughlins-administrator-7998839?utm_source=webapp" opinion_id="7998839">16 Mo. 242 , Brown’s Admr. v. Finley, 18 Mo. 375" court="Mo." date_filed="1853-07-15" href="https://app.midpage.ai/document/browns-administrator-v-finley-7999118?utm_source=webapp" opinion_id="7999118">18 Mo. 375, and George v. Williamson, 26 Mo. 190" court="Mo." date_filed="1858-01-15" href="https://app.midpage.ai/document/george-v-williamson-8000217?utm_source=webapp" opinion_id="8000217">26 Mo. 190. The probate court of Lafayette county therefore, had no jurisdiction over the lands conveyed by said Nutter to his sister Lizzie A. Nutter, and the plaintiff acquired no title by his purchase of the land in controversy from the administrator: cases above cited.

Whether the doctrine of estoppel in pais applies to a married woman, as to land owned by her, but not as her separate property, it is wholly unnecessary to determine in this cause, because we do not think-that the allegations in the petition of matters of estoppel were sustained by the evidence. There was no evidence except that of the relation between her and her husband, tending to show that she authorized or was informed of, the conduct of her husband in regard to the sale of the land. None whatever, that in person, she urged or sanctioned the sale by the administrator, while she testified positively that she did not know that the application for an order to sell the land had been made to the probate court, or that the application was granted, until after the sale had taken place, and that her husband was not her agent.

The land was not her separate estate, and this court held in Wilcox et al. v. Todd, 64 Mo. 390, that as to the other property owned by her she could have no agent.

Her husband testified that he did not inform- her of the proceeding in the probate court, or of the order of sale. He also testified that he had no authority from her to procure a sale by the administrator, or to bid or procure bidders at the sale.

There is evidence tending to show that Tilton Davis, her attorney in other cases, advised SamT Callahan’s administrator to procure an order for the sale of the lands, under the impression that a purchase by her at such sale would perfect her title, but he testified that he gave no such advice, nor expressed such an opinion. Whether he did or not, it would not have been binding upon Mrs. Callahan. It was not within the scope of his employment as her attorney. He was employed as an attorney at law to attend to certain cases therein specified, and generally to attend “ to any and all cases that may hereafter arise affecting, or designing to affect the title of said Lizzie A. Nutter in and to the lands heretofore conveyed to her by her brother, SamT "W. Nutter.” This certainly did not authorize him to procure the assertion of a hostile claim, and the sale of her lands under an order of the probate court. Erom the fact that he never consulted Mrs. Callahan in relation to, or advised her of, the proceeding in the probate court, or of the order made by that court, it is likely, as Davis states, that the witnesses misunderstood him. If for her benefit he advised that proceeding, it is very strange that he did not, as her attorney, inform her that the order had been made, and that she should prepare to purchase the land at the sale.

The court below committed no error in the trial of the cause,

and with the concurrence of the other judges,

its judgment is affirmed.

Aeeirmed.