121 Mo. 50 | Mo. | 1894
Ejectment for fifty-eight and twenty-two hundredths acres of land off the west side of the southeast fractional quarter of section 29, township 34, range 35, in Platte county. The petition is in the usual form. The answer, aside from being a general denial, alleges that defendant is the owner' of the land sued for, having' bought the same for value from one George Gabbert, who bought it at a sale by the administrator of the estate of James ~W. Eeese, deceased, and that the purchase money paid by Gabbert for said land, amounting to $1,280.84, was applied to the payment of the debts of the deceased; and a plea of the statute of limitations. To the answer plaintiff made reply.
The facts disclosed by the record are about as follows: In 1845, James W. Neese, plaintiff’s father, and his sister, Barbara Ann Reed, were the owners in common of a tract of land of which the land in suit was a part. In 1846 Barbara Ann Reed conveyed her interest in the land to plaintiff and her sister Mary
In 1869 plaintiff, with her husband, Thomas Throckmorton, and her children by her former husband, viz., James W. Moore, Madie P. Moore and "William J. D. Moore, minors, by their guardian William Moore, instituted suit in the Platte county probate court against Thomas H. Talbott, administrator of Nancy Eeese, and William E. Yocum, administrator of James W. Eeese, for the partition of the said tract of land, praying that the interest she held for life under the deed from Barbara Ann Eeed, in which her children held the remainder in fee at her death, be set off from that interest in the land belonging to the estate of James W. Eeese, subject to the debts of the estate. Decree was duly rendered in accordance with the prayer of the petition. The commissioners set apart to plaintiff and her children their portion,- and to the heirs of James W. Eeese the land in controversy, and their report was duly confirmed in 1875.
In 1876 the administrator of the estate of James W. Eeese applied to the Platte county probate court for an order for the sale of the real estate of James W. Eeese, including the land so above set off in partition to his heirs, the same land in controversy here, for the
Plaintiff’s last husband, Thomas Throckmorton, abandoned her some years before the institution of this suit, which was on August 16, 1890. As to the length of time which had elapsed after the abandonment, and before the commencement of the suit, the witnesses are not agreed, the time ranging from eight to ten and eleven years. For about two years after the separation, Throckmorton lived in this state, then moved to Kansas where he has since resided.
Under the instructions of the court the jury found a verdict for plaintiff for one undivided half of the land sued for. Defendant then filed his motion for new trial, which was sustained, and from the ruling of. the court in sustaining this motion and in granting defendant a new trial, plaintiff appealed to this court.
The court granted a new trial upon the theory that plaintiff should refund to defendant the sum of money paid for the land at administrator’s sale before being entitled to recover, and that- it committed error in declaring the law to the converse of that theory. If the land had been the property of James W. Reese at the time of his decease, then there might have been some plausible ground for the court’s ruling in sustain
As a general rule he who purchases at a judicial ;sale does so at his peril. (Estes v. Alexander, 90 Mo. 453; Cashion v. Faina, 47 Mo. 133). Andan administrator’s sale is such a sale. If plaintiff had inherited the land from her father which was sold for the payment of his debts, and she was suing to recover the land because of the invalidity of the sale, then before she ■could do so, she would have to refund to the purchaser of the land at the administrator’s sale, the money paid by him therefor, and which went to pay the debts of the ■deceased (Schafer v. Causey, 76 Mo. 365; Evans v. Snyder, 64 Mo. 516; Huff v. Price, 50 Mo. 228; Jones v. Manly, 58 Mo. 559; Shroyer v. Nickell, 55 Mo. 264; Valle’s Heirs v. Flemming’s Heirs, 29 Mo. 152), but that is not this case. Here the plaintiff is seeking to recover land to which her father never had a shadow of ■claim or title, that is, the interest deeded to her by her aunt.
Plaintiff having acquired the interest of her sister in the land by survivorship, then as the only heir at law of her father, she, by his death, acquired all the land that he then owned, subject, however, to’ the payment ■of his debts. This was the way the title of the land
By section 1, chapter 152, Revised Statutes, 1865, it is provided that in all cases where land, tenements, or hereditaments are held in joint tenancy, tenancy in common, or coparcenary, including estates in fee, for life, or for years., tenancy by the curtesy and in dower, it shall be lawful for any one or more of the persons interested therein to file a petition in the proper court for partition, etc. But nowhere is there to be found in this statute any authority for making an administrator either plaintiff or defendant in a suit for a partition of the real estate.
It is contended by counsel for defendant that, inasmuch as plaintiff, after being abandoned by her husband, had the legal capacity to sue, then the statute of limitations began to run against her, and that, as more than ten years had elapsed from that time before the commencement of this suit, during all of which time defendant and his grantor had been in the actual possession of the land, plaintiff’s action was barred by the ten year statute of limitations. This position would doubtlessly be correct but for the provisions of section,.
In Campbell v. Crater, 95 N. C. 156, it is held that the provisions of the Code of that state allowing a femme covert to sue alone regarding her separate property does not remove the disability of coverture so as to allow the statue of limitations tó bar her right of action.
Mere ability to sue does not impose an obligation to do so, and for that reason, even though plaintiff could have sued either with or without her husband, she was not compelled to do so nor did her failure to sue during the statutory period subject her to a plea of the statute of limitations. Smith v. Insurance Co. 64 Mo. 330; North v. James, 61 Miss. 761; Alsup v. Jordan, 69 Tex. 300; Wilson v. Wilson, 36 Cal. 447; Clark v. McCann, 18 Hun (N. Y.), 13; Ashley v. Rockwell, 2 N. E. Rep. 437.
There is but very little evidence of acts and conduct on the part of defendant which would go to estop her from recovering the land here sued for. Nothing, in fact, when her coverture is taken into consideration. The evidence does not show that she ever received a dollar of the money arising from its sale by the administrator of her father’s estate, and the fact that she may have thought the land legally sold, that the administra
Not only this but the deed under which plaintiff ■derived title was on record, and under such circumstances, mere silence on her part was no violation of duty .and she is not by reason of such silence estopped from .asserting her rights. Bales v. Perry, 51 Mo. 449; Mayo v. Cartwright, 30 Ark. 407; Neal v. Gregory, 19 Fla. 356; Sulphine v. Dunbar, 55 Miss. 255; Rice v. Dewy, 54 Barb. (N. Y.) 455; Knouff v. Thompson, 16 Pa. St. 357; Kingman v. Graham, 51 Wis. 232.
Moreover estoppel is not pleaded which is absolutely necessary when relied upon in pais as a defense. Bray v. Marshall, 75 Mo. 327; Avery v. Railroad, 113 Mo. 561; Noble v. Blount, 77 Mo. 235; Messersmith v. Messersmith, 22 Mo. 372.
For the reasons herein stated, the court committed ■error in sustaining the motion for a new trial, and the judgment should be reversed and cause remanded to be proceeded with in accordance with this opinion. It is .so ordered.