237 Mo. 545 | Mo. | 1911
This is a suit in equity by the heirs of W. T. Thompson to cancel a deed made by the administratrix of their father’s estate in pursuance of an order of sale of certain lands to pay debts.
The equities stated as the ground for relief are that the sale in question was ordered upon a publicátion imperfect in its terms and without any personal service of notice upon the plaintiff heirs, who resided at the time in the county where the administration was pending.
The defendant answered, admitting the death of W. T. Thompson in 1896 ; the qualification of his wife as his administratrix; that he was the owner of the land in controversy, and that the same was sold by order of the probate court, which was duly approved, and a valid deed was made and delivered to him by the administratrix; that he bought the same under the proceedings of the probate court, which are in all respects valid and regular; that he paid a full and fair price for the land, made lasting improvements and paid taxes thereon; and that plaintiffs are estopped by their laches to complain of said sale.
The parties stipulated as to the correct description of the land, which comprised about fifty acres; and that the plaintiffs were the three children and the representatives of the fourth child of W. T. Thompson, deceased, and were all of his heirs.
It appears from the records and files of the probate court of Pemiscot county, that at its February term, 1901, the administratrix exhibited as a part of her petition to sell the land for the payment of debts, a settlement of her previous accounts as administratrix to that term of the probate court; that this settlement was signed, and sworn to, and approved by the court. The court then made an order of publication, which was thereafter published for four weeks, and continued the settlement of the administratrix,
Minnie Macklin, one of the plaintiffs and daughter of W. T. Thompson, testified, that she had been married for four years in 1907,- the date of the trial; that she lived in Pemiscot county in 1901; that no paper pertaining to said real estate was served on her in that year. On cross-examination she stated: “Q. What is your husband’s name? A. Wilber Macklin. . . . Q. Do you know how a sheriff serves a paper on a person? A. No, sir, I never saw a sheriff serve a paper. Q. Did anybody ever give you a paper of any sort or of any kind about that land? A. No, sir. Q. What was it about? A. If there was ever any given, I don’t know of it. Q. You don’t remember of it? A. No, sir.”
Bertie Patrick, also one of the heirs of W. T. Thompson, testified that she was eighteen years of age in 1907 and had been married about .one year; that no papers relating-to an application to sell the land had been served on her in 1901 in Pemiscot county, where she had also lived. On cross-examination she stated: “Were all of you children minors in the year 1901? A. No, sir. Q. Who of you were adults ? A. Horace and Otie. Q. Did you know when this land was to be sold? A. Yes, sir; I knew it was going to be sold. Q. Did you know your mother was
A. W. Thompson, one of the plaintiffs, testified that he was married at the time the land was sold by his mother, the administratrix; that no personal service of notice was made upon him by the then sheriff, McFarland. On cross-examination he further testified: “Q. Did yon know your mother was going to get an order of sale for this land? A. I knew she was talking of it. D. Did you object to her doing that? A. No, sir.- 'Q. Were yon willing at that (time) that she made that sale order? A. Well, I thought I had nothing to say. Q. Yon were of age were yon not? A. Yes, sir. . . . Q. Yon do know when this land was sold yonr father’s estate was considerably in debt, don’t, yon? A. It was in debt, some, yes, sir. Q. Were yon here at the probate court with yonr mother when it sold? A. I was not here the day it sold, no, sir. Q. Were you here the day she got the order to sell it? A. I don’t remember. Q. Don’t yon recollect yon came with her the day she got the order? A. I came with her bnt I don’t remember anything about the order. Q. Don’t yon know that as a rule yon came with her when she came once a year to make her settlement? A. Some times, yes, sir. Q. Yon remember she tried to sell this land once, and that some mistake was made, and for that reason she didn’t sell it at this particular time, but sold it at a laterctime? Don’t yon remember that? A. Yes, I know she came to sell and didn’t sell. . . . Q. Yon say yon had no objection to yonr mother selling this land?” Objected to by counsel for plaintiff. Objection overruled. “Q. Yon knew all about it? Yes, sir.”
OPINION.
I. It is urged for appellant that the petition in this case does not state a cause of action. We cannot ■ sanction that view. The owner of a legal title who is in possession, or the owner of an equitable title whether in possession or not, may, in either case, sue in equity to remove a cloud on his title to real estate whenever the deed, instrument or record creating the cloud is not void on its face, but resort must be had to extrinsic oral testimony to show that fact. [4 Pom. Eq. Jur. (3 Ed.), secs. 1396-1399; Conn. Mut. Life Ins. Co. v. Smith, 117 Mo. l. c. 297; Mason v. Black, 87 Mo. 345; Harrington v. Utterback, 57 Mo. 519; Clark v. Ins. Co., 52 Mo. 272; Jewett v. Boardman, 181 Mo. 647.] These equitable principles have been supplemented and much expanded by the statutory remedies now set forth in section 2535, Revised Statutes 1909.
In the case at bar the deed under which defendant claims title is not only regular and formal on its face but is prima facie evidence of all the recitals therein contained, including, the order 'of sale made by the probate court, in pursuance of which it was executed. [R. S. 1909, sec. 176.] The validity of that order of sale is not impeached by anything appearing upon the records or contained in the files of the probate court. Therefore, if it is void, that fact is not apparent on the face of the record but must be shown by extrinsic oral testimony, proving the charge contained in plaintiffs ’ petition, that the order of sale was made without personal service of notice on the heirs resident in the county and hence without statutory authority. The case, therefore, falls within the general principles governing the power of courts of equity to remove a cloud on a title to real estate. The objection that the petition does not state a cause of action is untenable.
n. The next error assigned is the ruling of the court in excluding certain testimony proffered by defendant. In trials of equity cases the improper exclusion of competent evidence presents a wholly different question from the improper admission of incompetent evidence. An error in the latter respect constitutes no ground for reversing the judgment, for the reason that suits in equity are triable anew on appeal, and the appellate court can exclude from its consideration any inadmissible evidence contained in the record, and base its decree upon the preponderance of the competent evidence contained in the record. [Lacks v. Butler County Bank, 204 Mo. l. c. 479; Morrison v. Turnbaugh, 192 Mo. 427; Baxter v. Donnell, 69 Mo. App. l. c. 590; Hall v. Hall, 77 Mo. App. 606.] On the other hand, the exclusion from the record of competent testimony in a trial court is a grave error.
The vital point in this suit was a solution of the question of fact as to personal service of notice upon the plaintiffs of the petition of the administratrix to sell their ancestor’s land for the payment of debts of the estate. The heirs all lived in the county where the administration was conducted. They were, therefore, entitled by statute to be.notified of the presentation of the petition for the sale of the land. [R. S. 1909, sec. 152.] Three of the plaintiffs were examined as to whether any personal service of notice was made upon them in 1901 as required by law. They answered, as shown in the foregoing statement, in a general negative way* somewhat modified on cross-examination. To disprove these statements, defendant proffered the testimony of the former sheriff of the county to prove, first, that diligent and unavailing search had been made for the papers showing a return of service of notices by him on all the plaintiffs or their representatives who lived in Pemiscot county, Missouri, in 1901; second, the contents, in substance, of the process served by him. The exclusion of the testimony of this witness was highly
Under the facts stated in the petition in this case and shown on the trial, the defendant was entitled to adduce evidence disproving the testimony of the three plaintiffs tending to show that the sale made by the administratrix was without the notice to them required by law. . The ruling of the court in excluding the testimony set out in the statement herein adduced by defendant for that purpose deprived him of that defense ; and by keeping testimony on his behalf on that point out of the record deprived this court of the power to consider its probative force- in determining the whole cause on appeal. This was necessarily reversible error. Defendant’s objection to these rulings of the court was timely, and exceptions duly saved, and his assignment of error on that ground is sustained.
III. This disposition of this appeal renders it unnecessary to express our views on the proposition advanced in oral argument, that the order of sale was obtained by the administratrix at the time fixed by law for her annual settlement of the accounts, and, therefore, might be held valid without any showing either of publication or notice to the resident heirs. [R. S. 1909-, sec. 174.] The reason the statute requires an administrator who at any time other than an annual settlement day presents a petition for the -sale of lands to pay debts, to make publication and give notices thereof, is, that the right to sell may be contested by all the parties interested in the estate. The heirs, devisees
As the case must be reversed for other grounds, it is not necessary to determine in the present state of the record whether the order of sale made herein is validated under the statute authorizing such orders where it appears to the court upon a settlement of the accounts of the executor or administrator that the personal estate is not sufficient to pay the debts.
The judgment herein is reversed and the cause remanded for the reasons contained in paragraph II of this opinion.
The foregoing opinion of Bond, C., is adopted as the opinion of the court.