133 Mo. 400 | Mo. | 1896
This is an action of ejectment in statutory form for the north half of the northwest quarter of section 17, and east half of the northeast quarter, and the northwest quarter of the northeast quarter of section 18, all in township 45, range 7 west of the fifth principal meridian, lying in Osage county, being two hundred" and forty acres of land.
John McNamara died seized of said lands, March
He then avers that said court accordingly at said May term, 1891, made its order of record directing said administrator to sell said lands to pay off said mortgages and other debts on August 18, 1891, during the session of the county court; that said administrator did. sell said lands in - pursuance of said order on August 18, 1891, and reported his sale to said probate court and the same was disapproved; that said order of sale- was renewed for the November term, 1891, but owing to defect in his notice the sale was not. made at said term, but said order was renewed for said sale to be made December 28, 1891, at which time all of said land was sold for $1,307, but the same was again disapproved by said court; that at the February
“And, further answering, defendant says that immediately after his purchase from Patrick Quinn aforesaid, he did satisfy and pay the second mortgage thereon, and did enter into and still continues in the possession of said premises so.bought from him, viz., a premises belonging to the estate of John McNamara, deceased, and sold by his administrator under the order of the probate court of Osage county, hereinbefore set out; and the defendant says that he so bought said lands in good faith for the consideration hereinbefore set out, and without any knowledge or information of any deféct or imperfection in the proceedings of the Osage probate court, in and about the sale of said lands, or
“And, further answering, defendant says that if, owing to any defect, imperfections, or shortcomings in the matter of said proceedings of the probate court of Osage county, as to the sale of said land of John McNamara, deceased, or if, owing to the want of authority of said probate court to order said sale, or of the aforesaid administrator to make said administrator’s deed to Patrick Quinn, no title passed to latter, defendant says that before plaintiff can recover said premises so sold at administrator’s sale, and in part described in plaintiff’s petition, defendant herein is entitled to be reimbursed to the extent of the sum paid by Patrick Quinn at said administrator’s sale for said land purchased by him thereat, and improvements consisting of fencing and clearing of land of the value of $50, made by him on said premises; and defendant says that said purchase sum and the value of said improvements constitute in equity a lien on said premises in defendant’s behalf, and defendant asks that amount of lien be ascertained and adjudged in favor of this defendant, and that plaintiff be denied any right to the possession of said premises until said lien has been so ascertained and paid; and defendant asks for such other and general relief as to the court may seem meet and proper.”
“The plaintiff herein for reply to the new matter set up in the answer denies the same; he admits that he claims title to said lands as the devisee of John McNamara by his last will and testament duly executed and probated.”
As John McNamara was the admitted common-source of title, plaintiff offered in evidence, without objection, the last will of said McNamara duly executed, attested, and probated, by the terms of which all the estate of said testator, both real and personal, was devised to plaintiff. Plaintiff then offered testimony tending to show he was the Walter Hutchinson named as devisee in said will, and that the rents and profits of the land were of the value of $100 per annum, and then rested. Defendant demurred to the evidence, which being overruled, he excepted.
The defendant, to sustain the issues on his part, offered and read in evidence a deed of trust dated February 23, 1885, by which John McNamara conveyed all the lands in suit to E. A. Dudgeon, trustee, to secure a note of $600 of that date from John McNamara to Elizabeth Dudgeon, due one day after date, also satisfaction of the same deed of trust on the margin of the record of date June 2, 1892, by “Henry Marquand, assignee.” Also a deed' of trust from John McNamara of date December 20, 1886, to John E. Dudgeon, trustee, for John Findley, beneficiary, to secure a note of that date for $321, payable one day after date. Satisfaction on the margin of record by Henry' Marquand, assignee, June 2, 1892.
Defendant then offered and read in evidence the administrator’s deed of William Shelley, administrator cum testamento of John McNamara, to Patrick Quinn, of date May 26, 1892, conveying to said Quinn all the
Defendant also offered in evidence the petition of Shelley, administrator, to sell real estate to pay debts of his decedent, which avers that the whole amount of the personal property of said decedent is seventy-two dollars and sixty cents ($72.60), and that the same has been sold; that the said deceased died seized of real estate described as follows: The north half of the northwest quarter of section 17; the east half of the northeast quarter and the northwest quarter of the northeast quarter of section' 18, township 45 north, of range 7 west, and situated in Osage county, .Missouri; that the above described real estate was incumbered by a deed of trust executed by McNamara in his lifetime to E. A. Dudgeon, as trustee for Elizabeth Dudgeon, to secure payment of a note for six hundred dollars ($600) dated February 23, 1885, and bearing seven per cent interest from date; and also incumbered by deed of trust, or mortgage, to secure a note of decedent to John Findley for $285, and that the sum of $72.60 secured from sale of personal estate would only be sufficient to pay funeral expenses and costs of administration, which petition was filed May 25, 1891, and also the order of sale made thereon of the same date,, which is in the ordinary form. This order was renewed from time to time until the November term, when the sale was again ordered and was made December 28, 1891, and disapproved and the order renewed at the February term, sale made and approved of record at the next May term on May 26, 1892, and the deed ordered made to Quinn, and it was executed and duly acknowledged in open court on the same day.
Defendant also offered the sale bill showing that from the personal estate the administrator only realized $72.60. The final settlement showed a balance due
William Shelley testified for defendant that he was a brother of the defendant, Edward Shelley; that prior to the sale to Quinn by him he purchased the Eindley note and mortgage on March 12, 1891. He was the guardian of Edward Shelley, the defendant. He testified that Quinn never paid him anything of the purchase money; that Quinn gave Mrs. Dudgeon a new mortgage in lieu of the one the testator had given her.
In short, it very plainly appears that Quinn, at the instance of the administrator, merely bid in the land and took the deed, but never paid anything for the land; that subsequently Quinn induced Mrs. Dudgeon to accept his note and deed of trust in lieu of the mortgage she held from McNamara; that then Quinn deeded the land to the defendant, the brother of the administrator ; that the administrator, with his own money, bought in the Eindley deed of trust and caused the record of both the deeds of trust given by McNamara to be satisfied by one Marquand as assignee.
Upon these facts the court found for the plaintiff for the possession of the land and decreed that inasmuch as defendant had not paid the Dudgeon note and the same was still a lien on the land, he was not entitled to subrogation as to that, and that defendant had paid nothing for the Eindley note, but the same had been paid by the administrator and the record satisfied by Marquand in an effort to defraud plaintiff, and defendant had full knowledge thereof, but that the deed of trust by Quinn to Mrs. Dudgeon should remain and is still in force and should be sustained in equity against the claims of plaintiff herein.
No subsequent notice of sale, report of sale, or the approval thereof could save the proceedings from this incurable defect. An-order of sale of land made by a probate court without notice of an application for such order, except where it is made on an annual settlement of the accounts of an administrator and it appears that the personal, property is insufficient to pay the debts, is as void as if no order at all were made. Teverbaugh v. Hawkins, 82 Mo. 180; Patee v. Mowry, 59 Mo. 163. When the order is made at an annual settlement fixed by law, the parties interested in the estate are presumed to be in court and must take notice of orders affecting their interests, but when an order is made at a time other than an annual settlement, the heirs are not in court and the notice required by the law must be given to give the court jurisdiction to make the order of sale.
But it is urged by counsel for defendant that the judgments and orders of probate courts in the administration of estates are accorded the same presumptions in favor of their regularity as are indulged in favor of courts of general jurisdiction, and they are correct in this assumption. Camden v. Plain, 91 Mo. 117; Price v. Springfield Real Estate Ass’n, 101 Mo. 107; Rowden v. Brown, 91 Mo. 429, and cases cited. But the judgments of circuit courts and other courts of general jurisdiction may be overthrown by other portions of
Now, this order of sale was not made on an annual settlement. None was due and moreover the record recites and the files show it was made on a petition. By section 147, Revised Statutes, 1889, when the petition was filed the law required that notice to the heirs should be given by publication in some newspaper for four weeks or by ten handbills put up in ten public places twenty days before the term of the court at which such an order could be made, and yet the record affirmatively shows upon its face that such notice was not given but the order was made the same day it was filed. Hence it was invalid. Valle v. Fleming, 19 Mo. 460; Agan v. Shannon, 103 Mo. 661; Ferguson’s Adm’r v. Carson’s Adm’r, 86 Mo. 673.
The administrator’s deed is void and the court correctly ruled that plaintiff had the legal title and was entitled to judgment for possession unless the equitable defense interposed required plaintiff to first pay off the two deeds of trust, executed by his devisor, John McNamara.
As to these, the defendant’s answer tendered the issue that he had in good faith purchased said premises without any knowledge of any defect in the proceedings in the probate court; that the said premises are still subject in good conscience and equity to the deed of trust executed by John McNamara to Mrs. Dudgeon and ignorantly satisfied by the deed of trust
As to the improvements, they can not be adjusted in this action. Granting that Mrs. Dudgeon still has her lien, and it would appear that she has, she is not a party to this record and as neither Quinn nor defendant has paid any part of said lien, she is free to enforce it without any assistance from them and her claim is no bar to plaintiff’s recovery from defendant.
As to the payment by William Shelley, in what way is defendant entitled to that payment? William Shelley paid the debt, not defendant. Patrick Quinn, not William Shelley, sold and warranted the land to defendant. If William Shelley is not estopped by his unlawful conduct in buying his testator’s lands in an indirect way, which we need not decide, as he is not in court, then he is entitled to the equity, but defendant bears no such relation to the payment as will enable him to prevent plaintiff’s recovery of the land devised to him by John McNamara.
As to the pleadings, the answer tenders the issue which defendant now seeks to evade. The court simply found against the equity therein set up. The judgment is affirmed.