97 Mo. 141 | Mo. | 1888
This is a suit to compel the defendants to convey to two of the plaintiffs, one-half of a lot, 33 by 85 feet, in the city of St. Louis. The agreed statement discloses the following facts: Francis Donohoe purchased the lot from O’Fallon, in 1839, and received a.bond for a conveyance, conditioned upon the payment
On January 1, 1844, Terence Donohoe, having personally completed the payment of the sum of four hundred and fifty dollars, took a deed from John O’Fallon to the lot in controversy to “Terence Donohoe, administrator of Francis Donohoe, deceased;” from and after s§id conveyance he personally held open and notorious possession of, and used and occupied said land in controversy for his own use, and improved it until the year 1878, when, without consideration, he conveyed the same to his son, John F, Donohoe, and his daughter, Margaret Kortzendorffer, defendants, in undivided equal portions. Francis Donohoe died, leaving as his nearest of kin his brother Terence, who became administrator, and who then resided ip this state. He also left a sister, Margaret Reilley,' and a brother, John Donohoe, both of whom resided in Ireland. John died there in 1867, leaving four children, Mary Harney and Ann Donohoe, the plaintiffs in this suit. They came to this state in 1856 and 1863. John Donohoe also left two boys, who have not been heard from for seven years and more. Neither Margaret Reilley nor her children,' if any she had, ever left Ireland.
Under the statutes of this state, as they existed from 1835 to 1845, a resident alien could acquire real estate here by descent or purchase. R. S., 1835, p. 66; R. S., 1845, p. 113. These statutes did not apply to aliens non-residents of the United States. Wacker v.
An executor or administrator is a trustee, and when he purchases property with funds of the estate, he holds the property in trust for the estate and those entitled thereto; and it makes no difference whether the deed be to him as executor or administrator or not. But it does not follow that this property must be treated as personal property. The statute, as far back as 1835, enacted that, where the deceased had purchased real estate and not completed the payment, and the completion of the payment would be beneficial to the estate and not injurious to the creditors, the administrator might, by order of the court, complete the payment out of assets in his hands, “and such real estate shall be disposed of as other real estate.” R. S. 1835, sec. 2, p. 51. Francis Donohoe, at the time of his death, had an equitable title to this property. His interest therein was a real estate interest. Had the administrator paid the ten dollars, balance of the purchase price, out of the assets of the estate by order of the court, the property would have been real estate and descended to the heirs of the deceased. That he paid the balance of the pur chase price from his own funds- can be of no disadvantage to him. When he took the deed to himself as administrator he held the property fqr the benefit of those- entitled to the real estate. Terence Donohoe,
Besides all this, the administrator made final settlement and received his discharge in September, 1847. His trusteeship was then at an end, and there is no reason why the statute of limitations should not, from that time, run in his favor. Terence Donohoe used the property as his own and had open and notorious possession for a period of over thirty years, and that of itself constitutes a complete defense.
The judgment is affirmed.