12 S.W. 884 (Mo. 1889), Mourning v. Missouri Coal & Mining Co.

• Citation: 12 S.W. 884, 99 Mo. 320
• Opinion Judge: Sherwood, J.
• Party Name: Mourning v. The Missouri Coal & Mining Company, Appellant
• Attorney: Martin & Avery for appellant. George T. Dunn for respondent.
• Case Date: December 21, 1889
• Court: Supreme Court of Missouri

Page 884

12 S.W. 884 (Mo. 1889)

99 Mo. 320

Mourning

v.

The Missouri Coal & Mining Company, Appellant

Supreme Court of Missouri

December 21, 1889

Appeal from Lincoln Circuit Court. -- Hon. E. M. Hughes, Judge.

Reversed and remanded.

Martin & Avery for appellant.

(1) The debts contracted by Elizabeth Mourning for support, etc., and allowed against her estate, were, by the will of Thomas Mourning, a charge and lien on the land. Haydell v. Herick, 72 Mo. 253; Horst v. Sauer, 24 N.W. 924 (Minn.) . The expense of last sickness is in such a case a charge upon the land. Harbison v. James, 90 Mo. 411. (2) The payment of these debts by the sale of the land had the effect of subrogating the defendant to the rights and lien of the parties to whom the debts were due. Thomas v. Bridges, 73 Mo. 530; Wernecke v. Kenyon, 66 Mo. 275; Sheldon on Subrogation, secs. 30, 35; Perry v. Adams, 3 S.E. [N. C.] 729; Pool v. Ellis, 1 S. Rep. [Miss.] 725. And the right of subrogation will even pass to the grantee of such purchaser. Sheldon on Subrogation, sec. 28. And this was a good equitable defense. Evans v. Snyder, 64 Mo. 516. If these debts constituted a charge upon the lands, and the defendant by his purchase and payment of said debts was subrogated to the equitable lien of the creditors holding such debts, then the plaintiff would certainly have no right to the possession of said land until he had tendered a sufficient amount to discharge such lien. (3) The direction in the will that the lands be sold upon the death or marriage of the four daughters would, at such a period, be a conversion of the lands into personalty or money. Compton v. McMahan, 19 Mo.App. 494; 3 Redfield Wills [2 Ed.] 140, sec. 7. And ejectment will not lie to recover possession of personalty or money. 3 Wait's Action and Defenses, 9. (4) In no case was the plaintiff entitled to the possession of all the lands.

George T. Dunn for respondent.

(1) The debts allowed against the estate of Elizabeth Mourning were not a charge and lien upon the land. The cases of Haydell v. Herick. 72 Mo. 253 and Harbison v. James, 90 Mo. 411, do not sustain appellant's position. The land was sold at an administrator's sale, and the purchaser afterward sold it to appellant. The rule caveat emptor applies to judicial sales. Hensley v. Baker, 10 Mo. 158; Cravens v. Gordon, 53 Mo. 287. (2) The wish of the testator, that, at the...