123 Mo. 672 | Mo. | 1894
— The petition contains two causes of action, the first is an action of ejectment to recover possession of section 12, township ,50, range 7, in Audrain county, and the second is a suit in equity to redeem the same land. The three plaintiffs are the heirs at law of Julius J. Stowe, and the defendants are the widow and heirs of Thomas Banks.,
Julius J. Stowe died in 1874, the owner of ihe land in dispute. Clarence Buell and Elizabeth B. Stowe administered upon the estate. They, conveyed this section of land to James. S. Martin and William L. French by an administrator’s deed, dated the ninth of January, 1877.
The 'first' contention is that this administrator’s deed is void, because the order of sale was granted on the petition of Buell alone, the administratrix not joining therein. As to this question the record discloses the following facts: ■
Buell presented to the probate court a petition for an order to sell this and other real estate, describing himself therein as “one of the administrators of the estate of J. J. Stowe, deceased.” On the presentation of this petition the probate court made an order to show cause why the land should not be sold to pay the debts of the deceased, in the usual form. Thereafter the court made an order which begins with this recital: “Now at this day comes Clarence Buell and E. B. Stowe, administrators of said estate.” Then
Our statute provides that if the personal estate shall be insufficient to pay the debts of the deceased, “his executor or administrator shall present a petition to the probate court’ ’ praying for the sale of the real estate. It has been held under a like statute that where there are two or more administrators, all should join in the petition for a license to sell, and that a license granted to one executor or administrator is invalid, and this for the reason that the powers of administrators are joint. Hannum v. Day, 105 Mass. 34. Other courts have asserted a different rule. Melms v. Pfister, 59 Wis. 186; Jackson v. Robinson, 4 Wend. 436. Regularly all of the administrators' or executors should apply for the order, but in this case both appeared in the probate court and made proof of the order to show cause, and the order to sell is joint and both joined in executing the deed. The most that can be said is that the proceedings are irregular, and we have no hesitancy in saying the sale is valid in a collateral proceeding like this. It may be doubted whether the objection would be good on a direct
The further facts upon which the plaintiffs base a right to redeem are to the following effect: The deed from the administrators to Martin and French bears date, as has been said, the ninth of January, 1877; It vests in Martin twenty-two thirtieths and in French eight-thirtieths. On the second of February, 1877, Martin conveyed to William L. French two-thirtieths and to E. P. French ten-thirtieths, so that Martin and W. L. and E. P. French became the owners of the land in equal undivided parts. This deed contains a stipulation to the effect that the three were bound by a contract, the terms of which are not stated, made by the administrator of the one part and Martin and W. L. French of the other part. On the twenty-eighth of December, 1877, James S. Martin, W. L. and E. P. French conveyed the land back to “E. B. Stowe and Clarence Buell, administrators of the estate of J. J. Stowe” for the consideration of $3,300. This deed contains the statement that it is made in compliance with the conditions of a certain contract to said parties of the second part,' made by the parties of the first part, William L. French, and James S. Martin, dated November 27,1876. On the twelfth of February, 1878, the administrators made a report of sale of certain real estate, not now in question, to the probate court, which report, was approved. This order of approval goes on to say: “And it appearing to the court that since the last term of this court said estate has acquired title to .the following land,” describing the section now in dispute, “and that there are yet remaining debts due by said estate and unpaid, it is ordered that said administrators sell at private or public sale for cash all of the following lands,” describing this section, and also other lands included in a former order of sale.
There is considerable conflict in the parol evidence, but taken in-connection with the recitals in the deeds, it establishes the following facts: Prior to the date of the administrator’s deed the administrators entered into a written agreement, which was not produced on the trial, whereby they acquired the right to reacquire this section of land by paying to Martin and French $3,000, and interest thereon, within one year; that the land was conveyed back to administrators pursuant to this agreement for the consideration of $3,300; that the agreement was made by the administrators for the benefit of the estate and not for their individual benefit; and that Thomas Banks had notice and knowledge of this agreement when he purchased the land. He paid $5,500 for the land, and the administrators accounted to the estate for the money thus received. On final settlement there was paid to each of the three plaintiffs the sum of $1,051.
The administrator’s deed vested the title in Martin and French, and the deed to the administrators vested the title in them; but they held the land in trust for the benefit of the estate. Mobary v. Dollarhide, 98 Mo. 198. The creditors and heirs could have pursued the land, while the title remained in the administrators, and the question is whether the heirs can enforce their claim against Banks, who purchased with full knowledge of the facts constituting the trust. Ve think they can not, and for these reasons: The administrators acquired the title for the benefit of the estate and not by way of any breach of trust. The estate still owed debts so that it was necessary to sell the land again. The legal title was in them, and they sold the
It is insisted on behalf of the plaintiffs that the sale by the administrators to Martin and French was made as security for the payment of $3,000 and the transaction should be deemed and considered a mortgage. There is evidence tending to show that such a transaction was agreed upon in the first instance, but the parties were advised that the administrators could not procure an order of the probate court allowing them to borrow money. They then procured the order of sale. The evidence shows to our entire satisfaction that the administrator’s deed to Martin and French was not made as security, but was an intended out and out sale, with an agreement giving the administrator the right to purchase the property at any time within one year. The judgment of the circuit court, which was for defendants, is affirmed.
