Rogers v. Johnson

28 S.W. 635, 125 Mo. 202, 1894 Mo. LEXIS 381

• Court: Supreme Court of Missouri
• Decided: December 4, 1894
• Status: Published

Opinion

Burgess, J.

Ejectment for lands in Greene county, Missouri. The plaintiff claims title through an administration sale made by J. C. Woody, administrator of the estate of Abraham Woody, under an order of sale made in the probate court of Christian county, Missouri, for the payment of debts, more particularly a debt of one Jane Brown, which debt was duly allowed in the probate court of Christian county, and classed in the fifth class of demands against that estate on the thirtieth day of October, 3873. From this order of classification an appeal was taken to the circuit court of Christian county, and subsequently to this court where the ° judgment of the said probate court was affirmed. Brown v. Woody, 64 Mo. 577.

Subsequently J. C. Woody, as administrator de bonis non, filed his application in the probate court of Christian county for an order of sale of the lands to satisfy this judgment, which had been classed as a general demand against the estate. An order of publication was made and notice to the heirs duly published, and at the November term, 1868, an order of sale was made of the land in controversy with other land for the payment of debts. One William H. Johnson, who had theretofore acquired the title of the heirs of Abraham Woody (James Cave and wife, the latter a daughter of Abraham Woody, conveying to Wilkerson, Johnson’s grantor, by quitclaim deed) on the seventh day of February, 1869, began injunction proceedings to restrain the sale of the said land, obtaining a temporary writ. But at the September term, 1879, of the circuit court of Christian county the injunction was dissolved, the suit dismissed, and final judgment made in said cause, but not properly entered. From this judgment an appeal was taken by the said William H. Johnson to the supreme court, which was dismissed on the twenty-first day of May, 1883, for the reason that the judgment was not final.

Subsequently a final judgment in proper form was entered by a nunc pro time order at the February term, 1884, of the said circuit court, at which time said William H. Johnson appeared and had said injunction suit docketed, filed a motion to set aside the said nunc pro tunc judgment, and also filed a bill of exceptions to the action of the court. The said Johnson and others, including the defendants in this action, who were then the holders and owners of the land, on the twelfth day of February, 1884, also appeared in the probate court of Christian county, and filed objections to the sale of the land, and any other proceedings for the sale of the land by said Woody, as administrator, to pay debts, which motion was by the court overruled. The petition in the injunction suit was based on the theory that there had been devastavit by the former administrator, alleging, also, that a large amount of personal property had been distributed to the heirs of Woody, and that this should have been recovered back and.applied upon the debt; that a large amount of other lands had been left out of the order of sale, etc.

On the fourteenth day of August, 1883, the said Woody as such administrator, reported a sale of the land, made just prior to the writ of injuction, which sale was disapproved and a new order made. At the November term, 1883, of the said court, he again reported a sale of the land, which was disapproved, and the order of sale again renewed. At the February term, 1884, he made another report of sale, which was disapproved; and again at the May term of the said court he reported a sale of the said land to Lee Holland, which sale was approved, and under this sale plaintiff claims the title upon which he bases this action, he having acquired by deed the title of Holland. The sales prior to that to Lee Holland were disapproved upon the ground that the sums at which the land was sold were inadequate. These renewed orders recited that all objections and motions,to the contrary were overruled. Lee Holland conveyed the land to one James Cave, and Cave to the plaintiff.

The answer filed by the defendants in this ease pleads the ten year statute of limitations based upon adverse possession. It alleges, among other things, that all the title of J. D. Brown, Jane Brown’s husband, had been acquired by the said Abraham Woody. It avers that Jane Brown, prior to the application to sell the lands, conveyed the same by quitclaim deed to one Wilkerson; sets forth a number of matters, equitable in their nature, and pleads the statute of limitations. The replication is a general denial.

Upon the trial the principal defenses relied upon were: the statute of limitations, it being claimed that the possession of defendants and their grantors was adverse to the administrator and a purchaser under him; that the reappointment of J. C. Woody was void and hence the administrator’s sale by him was void; that no notice of application for an order of sale had been given, etc. Upon the trial the plaintiff prevailed, and, after ineffectual motions in arrest and for a new trial, the defendant appealed to this court.

Both plaintiff and defendants claim title from the same source, Abraham Woody, deceased, the plaintiff under administrator’s deed, and the defendants from his legal heirs. It, therefore, .becomes unnecessary to consider any question as to the title of Abraham Woody.

The first contention on the part of defendants is that the original judgment rendered in favor of Jane D. Brown, and the order allowing it as a demand against the estate of A. Woody, deceased, are void, because it is claimed that on the face of the judgment, and from- the whole record, it affirmatively appears, that the claim for rent for the year 1866 accrued after the death of said A. Woody, and that his land could not be sold for debts which accrued subsequent to his decease.

Clearly the judgment was not void, unless rendered so because of the want of jurisdiction in the court, over the parties or the subject-matter of the controversy, and that the probate and circuit courts of Christian county had such jurisdiction was settled by this court in Brown v. Woody, 64 Mo. 547. And, unless the judgment was absolutely void, itwasnot subject to collateral attack, although it may,, in fact, have been erroneous, or bottomed on a claim for which the land of deceased could not have been legally sold for the purpose of paying it.

Another contention is that the order of the probate court of Christian county, approving the final settlement of John H. Woody, made at the October term, 1874, was a final judgment, and, until vacated by a direct proceeding, that court had no further jurisdiction of the premises, and after such settlement the land of the deceased could not be subjected to the payment of debts due by the estate. The record shows that the notice given by the then administrator, John H. Woody, of his intention to make final settlement was at the October term of said probate court, 1870, but that it was not made until four years thereafter, and at the October term, 1874. It is stated in defendant’s abstract, and not controverted by counsel for plaintiff, that orders were made from time to time continuing said settlement until the time at which it was made, and the power of the court to do so, is not questioned.

As it does not appear that there was any- order made discharging the administrator, he still remained within the control and jurisdiction of the court. Rugle v. Webster, 55 Mo. 246. But this settlement was final, as shown by the order of the court approving it. It must, however, be presumed in the absence of anything being shown to the contrary, that the estate had not been fully administered, and the order appointing J. C. Woody administrator de bonis non was legally and properly made. In such circumstance the appointment was not subject to collateral attack. Thus it has been said that, “objections to letters of administration because steps preliminary to their issuance were not taken in the probate court should be made in that court and not in a collateral suit.” Macey v. Stark, 116 Mo. 481. See, also, 2 Woerner’s Amer. Law of Administration, p. 1033; Johnson v. Beazley, 65 Mo. 250; Dunn v. Bank, 109 Mo. 90; Brawford v. Wolfe, 103 Mo. 391.

A further contention is that the -administrator’s sale under which plaintiff claims title is void, because there was no petition for order of sale, and no publication of notice that such an order would be applied for. That the publication of notice and order thereon, will not support the renewed order of sale made in 1873, especially as the administrator to whom the order was directed in 1878 resigned in 1882.

The record shows that an order of sale of the real estate of the decedent was made at the November term, 1878, of said probate court, which recites that, “the order of publication made at the August term, of this court upon the petition of the said administrator (J. C. Woody, administrator de bonis non, of the estate of Abraham Woody, deceased), ashing for an order for the sale of certain real estate of the deceased therein described, for the payment of a debt due by said estate therein mentioned, the same being a judgment in favor of the said Jane Brown against John H. Woody, formerly administrator of the said estate, for the sum of $600, damages on account of the deforcement of her dower in said estate, has been published for four weeks in the Ozark Monitor and Leader, a newspaper published in Christian county, Missouri, the last publication of which was more than twenty days prior to the first day of the present term of this court,” and then proceeds to order the land in controversy sold at public sale for cash in hand.

In pursuance to this order the land was sold by the administrator who made report of the sale at the August term, of said probate court, 1883, which was disapproved, and the order of sale renewed, the land again sold in pursuance thereof, by J. C. Woody, administrator de bonis non, at the November term, 1883, which sale was' likewise disapproved and the order of sale again renewed.

' Again at the February term following, the administrator reported the sale of the land in compliance with the last order, and this sale was also disapproved for like reasons as the former sales, on account of inadequacy of the price bid.- The order of sale was then again renewed, the land sold to one Lee Holland, and report made thereof at the May term, 1884, of said probate court, and approved. The order of the court approving the sale recites that, “it appearing that said sale was legally and fairly conducted in pursuance of the order of the court and in accordance with the statutes, it is, therefore, ordered that said sale be, and the same is hereby, approved and confirmed, and the said administrator de lonis non is ordered to execute, acknowledge, and deliver to the said Lee Holland, a deed in due form of law, conveying to the said Lee Holland all the right, title, and interest of the said deceased in and to said land at the time of his death.”

No reason has been suggested to us why the notice given by one administrator of an intended application for an order to sell land of the estate for'the payment of debts against it, could not be used by his successor as administrator of the same estate. Nor do we think any exists. It has in effect been so held by this court. Agan v. Shannon, 103 Mo. 668.

Moreover, “the order of approval was a final judgment from which an appeal could have been taken and was the judgment of a court having jurisdiction of the cause and over the parties, and is entitled in this collateral proceeding to the same favorable presumptions and intendments that are accorded to the judgments of circuit courts and no more open to collateral attack.” Noland v. Barrett, 121 Mo. 181, and authorities cited.

The statute of limitations is also invoked by defendants in aid of their title. In order that this defense may be available to them, their possession must have been hostile, open, notorious, continuous and adverse, as against the true owner, for a period of ten consecutive years. When A. Woody died, his lands descended to his children subject to the dower interest of his wife and the payment of his debts, and there could have been no adverse holding by them, except as against each other, and in this case the holding was in consonance with each other and no one else had or claimed any title thereto, and defendants’ holding under them, occupied no better position. Sherwood v. Baker, 105 Mo. 472.

It is very true that Mrs. Jane Brown claimed a dower interest in the land as the widow of John Brown, deceased, the grantor of A. Woody, but that claim was subsequently merged into a judgment against his estate in payment of which the land was subsequently sold by his administrator to Lee Holland, to whom the administrator made a deed June 11, 1884, conveying all the interest that deceased had in the land at the time of his death, and from that time subsequent defendants title was adverse to Holland and those claiming title under him and not before; but ten years had not elapsed from that time up to the commencement of this suit. The fact that defendants may have been innocent purchasers and acquired the land in good faith at its full value can make no difference for as was said in Faran v. Robinson, 17 Ohio St. 242: “Under our laws, the real estate of a deceased person, subject to the widow’s right of dower, is, in the last resort, as much and as truly assets in the hands of his personal representatives for the payment of debts, as his personal property is. His debts are a lien on his real estate; his heirs to whom it descends take it cum onere-, ’ and whoever buys it from them, does so subject to the application of the rule of caveat em23tor.,!

Nor do we think plaintiff, or those under whom ho claims title, guilty of such laches as would preclude him from recovering in this case, as the delay in selling the land was caused largely by the frequent disapproval of the sales of the land by the administrator by the probate court, and the injunctive proceedings by other parties, which fully explained the delay, and was entirely justifiable.

There are other questions of minor importance raised by counsel for defendants in his brief, which we think of but little or no merit, and, therefore, do not pass upon them.

The judgment is affirmed.

All of this division concur.