Hicks v. Watson

167 S.W. 533, 258 Mo. 425, 1914 Mo. LEXIS 352

• Court: Supreme Court of Missouri
• Decided: May 26, 1914
• Status: Published

Opinion

ROY, C. —

This is a proceeding to quiet title to 180 acres of land. There was a judgment for the defendant.

James E. Hicks died intestate on January 23,1863. He was at the time of his death in possession of, and claimed to own, the real estate in controversy. The plaintiffs are his heirs. His widow, Eliza J., died in 1911. James E. Hicks lived with his family on the land at the time of his death. On February 20, 1864, the administrator of his estate applied to the probate court for an order to sell all of his real estate to pay debts. An order of publication was made of record pursuant to the statute, returnable to the first day of the next May term to be held on the third Monday in .May. On May 23, 1864, th.e order of sale yms made, describing tbe land and reciting that the order of publication made at the February term had been duly published according to law. The order found all the facts necessary to be found to justify such order. It directed that the land be sold at public sale on the third Monday in August next at the courthouse door' in Greene county while the probate court was in session. That order was not executed and was renewed without new application or notice at the August term, 1864, directing a public sale on the first day of the next term of the court. On May 23, during the May term, 1865, the following record entry was made-: “Now at this day comes Elisha Headlee, Public Administrator, having in charge the estate of said deceased and files herein his report of the sale of said real estate, which report is by the court approved.”

A deed was read in evidence from the administrator to Francis M. Watson, dated May 29, 1865-, which recited that it was made pursuant to order of sale made at the May term, 1864, and that the sale was made on November 21, 1864, at public sale during the session of said court. It conveyed the south 120 acres of the land in controversy.

On December 23,1865, at the November term, there was a renewal of the order of sale as to all the land in controversy. That order recited that the order of publication made at the February term, 1864, had been duly published according to law. It overlooked the fact that 120- acres of the land had been sold by the administrator to Watson, and directed that all the land be sold at public .or private sale on or before the first day of the next term of the probate court.

On June 7, 1866, at the May term, 1866, the following record entry was made: “Now at this day comes said administrator and files herein his report of the sale of real estate, which said report is by the court approved and said administrator ordered to be charged with the sum of ($150') one hundred and fifty dollars.”

A deed from the administrator to Mrs. E. J. Hicks was in evidence conveying the north sixty acres of the land in controversy, reciting that it was made pursuant to the order made at the November term, 1865, and that the -land was sold at public, sale on Monday, February 19,1866.

On October 8,1868, Mrs. E. J. Hicks conveyed the north sixty acres of the land in controversy to Francis M. Watson, who bad purchased the other part of the land as above stated. The defendant claims through mesne conveyances from Francis M. Watson, and he and those under whom he claims have been in possession ever since the sale of the land by the administrator. .

Defendant put in evidence receipts given to the administrator for the costs of publishing the order of publication and for publishing notices of the sale of real estate.

There was evidence for defendant tending to show that the east eighty acres of the land in controversy did not belong to James E. Hicks, but as we'have concluded that whatever title James E. Hicks had has vested in the defendant, we will not set out that evidence. There was a plea of the ten-year Statute of Limitations.

Ejectment I. As to the south 120' acres of the land the plaintiffs are barred by the Statute of Limitations; and we n°t decide whether the deed to Francis M. Watson from the administrator was valid. Plaintiffs claim that as dower had never been assigned to the widow, her right of quarantine prevented the running of the Statute of Limitations against the heirs.

Limitations: Quarantine. It is true that where the widow or some one claiming under her is in possession under her quarantine right, the heirs cannot be barred by adverse possession. [Graham v. Stafford, 171 Mo. 692; Carey v. West, 139 Mo. l. c. 176.] But the defendant does not claim the south 120 acres under the widow. He claims under the administrator’s deed. Whether that deed is valid or not the Statute of Limitations has run in his favor. [Agan v. Shannon, 103 Mo. 661.]

II. As to the remaining sixty acres, we hold that the administrator’s deed to Mrs. E. J. Hicks was valid and conveyed all the title that her husband owned at his death.

sale to Pay Debts: Publication. The recital of the fact that the order of publication made at the February term, 1864, had been duly published according to law, is presumed to be a fact in the absence of any showing to the contrary. [Agan v. Shannon, supra.]

OrderWal The order of sale made at the November term, 1865, on December 23, was nothing more than a second renewal of the order of sale made at the May term, 1864, based on the order of publication made at the February term, 1864.' No new application or order of publication in such case was necessary. [Brown v. Marshall, 241 Mo. 707.] It is true that a sale, or an attempted sale, had been made of a part of the land to Francis M. Watson, and the last renewal order overlooked such fact and ordered the sale of all the land. The whole includes all its parts; and the order was good as to the land which had not been previously sold.

Presumptions. The record entry approving the last report of sale does not show to whom the sale was made nor does it describe the land. A deed was made immediately to Mrs. E. J. Hicks for that part of the land which was not sold at the first sale. In the absence of a showing to the contrary, we will presume that the report showed that Mrs. Hicks purchased the land which was conveyed to her.

Notice III. Appellants make the point that the heirs of James E. Hicks were not mentioned or notified in the proceedings. The order of publication notified “all persons interested in the estate” of the said deceased of the facts .required by Revised Statutes 1855, page 145-, section 25-. That was the only notice then required by law.

The judgment is affirmed.

Williams, G., concurs.

PER CURIAM. —

The foregoing opinion of Roy, 0., is adopted as the opinion of the court.

All the judges concur.