Hughes v. McDivitt

Decision Date17 November 1890
Citation14 S.W. 660,102 Mo. 77
PartiesHughes et al., Plaintiffs in Error, v. McDivitt et al
CourtMissouri Supreme Court

Error to Clinton Circuit Court. -- Hon. J. W. Sandusky, Judge.

Reversed and remanded.

Wm Henry, F. B. Ellis and J. F. Harwood for plaintiffs in error.

(1) The court erred in excluding the deed of William Jones administrator, to James Fugate, the father of plaintiff Martha J. Hughes. Henry v. McKerlie, 78 Mo. 417; Evans v. Robberson, 92 Mo. 192; McClure v. McCury, 53 Mo. 173; Robson v. Thomas, 58 Mo. 581; Baker v. Underwood, 63 Mo. 384. (2) The court erred in refusing to set aside the nonsuit.

Crosby Johnson and Davis & Rogers for defendants in error.

(1) After the amendment of the petition, changing the cause of action from one in favor of Mrs. Hughes to one in favor of Mr. Hughes, the circuit court of Clinton county had no jurisdiction of such new cause of action. Field v. Maloney, 78 Mo. 172. (2) A party cannot, under guise of amending his petition, so change the same as to substitute another cause of action for the one stated, or attempted to be stated, in his original petition. Bliss on Code Pleadings, sec. 429; Lumkin v. Collier, 69 Mo. 170. (3) As the statute of 1845 required that an administrator's deed should be acknowledged, a proper acknowledgment was an essential part of the deed; and without an acknowledgment the deed would have no validity. Cabell v. Grubbs, 48 Mo. 355; Allen v. Moss, 27 Mo. 355; Allen v. King, 35 Mo. 216. Although a defectively acknowledged administrator's deed may be good as color of title, it is insufficient to pass title. Campbell v. Gas Co., 84 Mo. 354. (4) A deed is necessary to pass the title. Wohlien v. Speck, 18 Mo. 561. Sale, payment of price and approval may create in the purchaser an equity for a title, which would defeat an action of ejectment against such purchaser, as was declared in the case of Henry v. McKerlie, cited by the plaintiff's counsel; but a plaintiff in ejectment cannot recover on an equitable title. Pickett v. Jones, 63 Mo. 195; Ford v. French, 72 Mo. 250; Dunlap v. Henry, 76 Mo. 106. (5) As there was no evidence that the title of the land was ever vested in Partridge, the rejection of the instrument in question was not prejudicial to the plaintiffs so far as can be determined from the record. Unless the court can see that the rejected evidence was material, there is no ground for reversal. Bank v. Aull's Adm'r, 80 Mo. 199; Kraxberger v. Roiter, 91 Mo. 404; Fitzgerald v. Barker, 96 Mo. 651. (6) After a suit has been brought in the name of one, another party cannot, by amendment of the petition, be substituted as plaintiff. Crescent F. & L. Co. v. Raddatz, 28 Mo.App. 210. (7) On the state of facts disclosed by the reply of the plaintiffs there could have been no recovery in this action by Mrs. Hughes. Rust v. Goff, 94 Mo. 512. If the allegations of the reply are true the right of action was in the husband only. Wilson v. Garaghty, 70 Mo. 517.

Black J. Barclay, J., dissents.

OPINION

Black, J.

-- This is an action of ejectment brought by Martha J. Hughes and her husband to recover eighty acres of land situate in the county of Caldwell. The venue of the cause was changed to Clinton county. The plaintiffs having shown that Martha J. Hughes was the sole surviving heir of James Fugate, deceased, offered in evidence the following administrator's deed: "Whereas, I, William Jones, of the county of Caldwell, and state of Missouri, administrator of the estate of Edward Partridge, deceased, late of the county of Hancock, and state of Illinois, in pursuance of an order of the Caldwell county court made at their December term, bearing date the eighth day of December, 1840, have this day bargained and sold unto James Fugate, of the county of Caldwell, and state of Missouri, for, and in consideration of, the sum of $ 52.50, the receipt of which is hereby acknowledged, all the right, title and interest that the said Edward Partridge had at the time of his death, in and to the following lots, pieces or parcels of land, situate, lying and being in the county of Caldwell, and state of Missouri, or so much thereof as is vested in me by the above-mentioned order, to-wit:"

The deed then goes on to describe the land, and is signed and sealed by the administrator, and bears date March 21, 1846. The acknowledgment is in these words:

"State of Missouri,

)

)

ss.

"County of Caldwell,

)

"Be it remembered, that on this, the twenty-first day of March, A. D. 1846, personally appeared before me, Joseph C. Hoord, clerk of the county court within and for the county aforesaid, Wm. Jones, administrator of the estate of Edward Partridge, deceased, whose name appears in the foregoing instrument of writing as a party, as administrator aforesaid, and acknowledged the same to be his act and deed for the purposes therein named.

"In witness whereof, I have set my hand and affixed the seal of said court, at office in Kingston, this the day and date last aforesaid.

"[Seal.] Joseph C. Hoord,

"By J. H. Bryan, Clerk.

"Deputy Clerk."

The bill of exceptions states that plaintiffs, in support of the deed, introduced evidence tending to prove that the records of the probate court of Caldwell county, including the records of the administration of the estate of Edward Partridge, were destroyed by fire; also further evidence tending to prove that the county court of Caldwell county, then having probate jurisdiction, approved the sale of the land described in the deed by an order entered of record, and that before said sale the land was appraised as required by law. The court, on a general objection made by the defendants, excluded the deed.

The plaintiffs also offered in evidence a certified copy of a bond dated the twenty-fifth of February, 1841, signed by Jones as administrator of the estate of Edward Partridge, which contains recitals to the effect that the administrator had, pursuant to an order of the county court made on the eighth of December, 1840, sold the property specified in the deed to James Fugate for $ 52.50, one-half to be paid in six months, and the other half in twelve months, and states that a deed shall be made when the purchase money is paid.

1. An objection made to the deed in support of its exclusion by the trial court is, that it is defective in its recitals in these respects: First, it does not recite the order of sale so as to show whether the sale was to be public or private; second, it does not show when the sale was made, nor whether it was made during the session of any court; third, it does not show that any report of the sale was made, nor that the report was approved; and, fourth, it fails to show that the property was advertised for sale.

It is perfectly clear that the sale was made under an order of the county court, entered at its December term, 1840, and that the sale was made not later than the twenty-fifth of February, 1841. The proceedings were, therefore, had under, and are governed by, the Laws of 1835, and not the Revised Statutes of 1845. According to section 22 of article 3 of the act concerning executors and administrators of 1835, the administrator must, upon the payment of the purchase money, execute, acknowledge and deliver to the purchaser a deed "stating the date of the order of sale, and the court by which it was made, and the consideration." An inspection of the deed is sufficient to show that it states these three things; namely, the date of the order of sale, the court by which the order was made, and the consideration. The deed, therefore, complies with the law in respect of its recitals.

The statutes of 1835 do not, like the statutes of 1845 and subsequent statutes, make the deed of itself evidence of matters stated therein; but the act of 1835 requires the administrator to report the sale to the court, with the certificate of appraisement and a copy of the advertisement; and the report must be approved by the court. The approval, of which there is evidence in this case, is in effect a judgment that the sale has been conducted according to law and the order of the court; and it was not incumbent upon the plaintiff to produce any evidence additional to the deed and the order approving the sale. Price v. Springfield Real-Estate Ass'n, 101 Mo. 107, 14 S.W. 57.

2. A further objection is made to the administrator's deed on the ground that the certificate of acknowledgment does not show that the grantor was personally known to the officer who made the certificate. The statute, which makes it the duty of the administrator to execute, acknowledge and deliver to the purchaser a deed, does not state what the certificate of acknowledgment shall set forth. It must, therefore, conform to the general law on that subject. By the statute of 1835 as well as that of 1845, it was provided that "the certificate of acknowledgment shall state the fact of...

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