| Mo. | Feb 6, 1912
— This is a suit under section 2535', Revised Statutes 19.09, to ascertain and determine the title to a one-tenth interest in the southeast quarter of the southwest quarter of section fifteen, and north
The facts are that Gertie Chamberlain was the owner of the land described and she died intestate April 25, 1905, leaving as her only heirs her father Samuel T. Atkinson, mother, and brothers .and sisters (or their representatives) to the number of eight, ten different persons apparently being entitled to participate in the distribution of the estate. The father, Samuel T. Atkinson, was appointed administrator. lie. was insolvent and indebted to Gertie Chamberlain at her death in the sum of $126, augmented by interest to about $136 at the time of the trial. The decedent’s estate consisted of one hundred acres of land, including that in suit, cash in the amount of $68.95', notes inventoried at $167.50, and household goods out of which $57.75 had been realized. Demands aggregating $271.50 had been paid, including a total of $38.13 for probate fees, attorney’s fees and administrator’s commission. Of this amount the administrator paid $134.80 out of his own funds. The notes inventoried were those executed by him and two signed by another distributee.
The value of the land was a much mooted question. Witnesses variously estimated it at from $12 to $15 per acre.
In October, 1905, Samuel T. Atkinson was, in the Federal court at Hannibal, Missouri, duly adjudged bankrupt, his interest in his deceased daughter’s land, including the land in suit, was duly sold by the trustee by order of the court having jurisdiction of the bankrupt’s estate, and respondent became the purchaser, receiving his deed in January, 1906.
Evidence for appellant tended to show that in the summer of 1905 he made some sort of an agreement to purchase from the administrator or heirs of Gertie Chamberlain the land in suit at $15' per acre, and that
Respondent tendered the amount of Samuel T. Atkinson’s indebtedness to the Chamberlain estate to Samuel T. Atkinson as administrator and renewed that tender in his reply filed in this case, but did not deposit the money in court.
The trial court adjudged respondent to be the owner of a one-tenth interest in the land and defendant to be the owner of the other nine-tenths subject to a mortgage he had executed.
The evidence was not sufficient to have warranted a finding that appellant had become the- equitable owner by reason of a contract of purchase and possession taken thereunder prior to the commencement of the proceedings in bankruptcy. The trial court was right in refusing to so find.
Samuel T. Atkinson had not conveyed the legal title at the time he was adjudged a bankrupt and that title being impressed with no equities in appellant’s favor by reason of the only facts set up, the trustee in bankruptcy took whatever title Atkinson inherited and that passed by the trustee’s deed to respondent.
Appellant could not and did not acquire the Samuel T. Atkinson interest by the deed in which Atkinson joined, for the reason that that interest had previously 'vested in the trustee when Samuel T. was adjudged a bankrupt, and had been sold to respondent under the order of the court of bankruptcy.
Nor was the sale to appellant made pursuant to the power of the probate court to sell to pay debts of
The rights of the creditors of the Chamberlain estate, if creditors there are, to subject the land to the payment of their debts in the usual way was not affected by either sale, nor is it nor could it be affected by the judgment in this case.
Whatever effect Samuel T. Atkinson’s indebtedness to the estate of Gertie Chamberlain might otherwise have had toward diminishing his distributive share or interest (Duffy v. Duffy, 155 Mo. 144" court="Mo." date_filed="1900-03-14" href="https://app.midpage.ai/document/duffy-v-duffy-8013502?utm_source=webapp" opinion_id="8013502">155 Mo. 144; Ayres v. King, 168 Mo. 244" court="Mo." date_filed="1902-03-29" href="https://app.midpage.ai/document/ayres-v-king-8014274?utm_source=webapp" opinion_id="8014274">168 Mo. 244), it did not of itself devest him of all title. There was ample evidence to support a finding that his indebtedness was less than one-tenth of the whole, taking into proper consideration that indebtedness and that of the other distributees. Further, payment of his indebtedness prior to the institution of the bankruptcy proceedings would certainly have relieved Samuel T. Atkinson’s interest in the estate of the burden to which it would otherwise have been subject. Payment had been made prior to the trial. If made-prior to the time mentioned, plaintiff took Atkinson’s interest unencumbered. The time of the payment having been before the trial court, and not being shown by this record, the usual presumption in favor of the judgment ought to be indulged. In the circumstances it is not necessary to decide whether payment made prior to the sale by the trustee and after the institution of the bankruptcy proceedings would have sufficed. The trial court seems to have arrived at a just conclusion so far as the rights of plaintiff and defendant are concerned, and they alone are affected by the judgment.
There is no reversible error in the record and the judgment is affirmed.
— The foregoing opinion by Blair, C., is adopted as the opinion of the court.