Knowlton v. Smith

36 Mo. 507

• Court: Supreme Court of Missouri
• Decided: October 15, 1865
• Status: Published

Opinion

Wagner, Judge,

delivered the opinion of the court:

The chief, error complained of is the second instruction given by the court below at the instance, of the respondent, that the deed from Clark’s administrator to. Belton did not show that the administrator ever made any report of his proceedings in the sale of the land, nor that said report was ever approved by the probate court; and. that as no evidence was offered or introduced showing that said report was ever eonfirmed.or approved, the deed was void, and passed no title on which plaintiff could recover. The proceedings in the probate court, and the sale by the administrator, took place in the years 1842 and 1843, and were consequently governed by the code of 1835. That law required that the administrator. or execxitor, at the next succeeding, term of the court after sale, should make full report of his proceedings, with the certificate of appraisement and a, copy of the advertisement vezlfied by affidavit, <fcc.; and if such report and proceedings of the executor or administrator were not approved by the court, the proceedings -were,to be void ; but if they were approved, the sale, should be valid, and the executor or administrator, a§ soon as full payment should be made of the purchase money, should execute, acknowledge and deliver to the purchaser a deed, stating the order of sale and the court by which it was made and the consideration.

It is contended that as no recital is made in the deed that the court approved the proceedings, the conveyance is void, or, at least, can only be upheld by showing from evidence aliunde the approval of the court in the premises. It is sufficient answer to this to say, that the statute did not require such recital. All that was necessary according'to the then existing law, was to state the date of the order of sale, the court by which it was made, and the consideration, and these are all embodied in the deed. This compliance with the law was sufficient to make the deed prima facie evidence, and the onus of proof to destroy its validity devolved on those who attacked it. A liberal construction will be indulged to uphold judicial sales, and where the proceedings appear regular on their face, they will be presumed to be correct in the absence of rebutting facts and circumstances.

In Valle v. Fleming, it was shown affirmatively by the record, that the law had not been complied with, and that the jurisdiction of the court had never attached. (19 Mo. 454.) And in suits of this description it is not competent for third persons to impeach the deed collaterally ; it can only be done by the parties or their privies in a proceeding to set it aside, or have it cancelled, or by their creditors in attacking it for fraud.

It is claimed that the parties having agreed upon a division line, and occupied each his own part respectively on the faith of that agreement, that they are estopped and concluded from asserting any other line. If the agreement was made and entered into under a mistake of facts, a party is not precluded from claiming his rights, as under such circumstances there is no presumption of his surrender, or waiver of rights given up under a misapprehension. Whilst parties cannot avail themselves of any defence where they have entered into a contract through mistake or ignorance of law, it is different as to a mistake or ignorance of facts, provided the rights of innocent third persons have not intervened in consequence thereof; and this virtually disposes of the plea of the statute of limitation.

The possession required by the statute must be with the intention of asserting an adverse title. It is the occupation with an intent to claim against the true owner that makes the possession adverse ; therefore, where parties designate their division lines through ignorance, inadvertence or mutual mistake, the possession held by either will not be -adverse. Questions of adverse possession thus depending upon the intention of the possession are questions of facts as well as law, to be determined by a jury as the best means of ascertaining the truth, under proper instructions from' the court. Lord Mansfield says: “disseisin is a fact'to be found by a jury (Taylor v. Horel, 1 Burr. 60) ; but if the jury return a verdict only that the defendant has held quiet possession of the demanded premises for more than twenty years, such verdict cannot, by legal intendment, be considered as establishing the alleged fact of disseisin. (Pejepscot Proprietors v. Nichols, 1 Fairf. 256.) There must be something more than mere possession; there must be shown an intention to possess and occupy adversely to the true owner.

Having indicated our views on all the material questions that can arise in the trial of this cause, it is not necessary to notice the instructions in detail.

The judgment is reversed and the cause remanded.

Judge Holmes concurs

; Judge Lovelace absent.