Kane v. The Kansas City, Fort Scott & Memphis Railway Company
| Decision Date | 31 October 1892 |
| Citation | 20 S.W. 532,112 Mo. 34 |
| Parties | Kane et al., Appellants, v. The Kansas City, Fort Scott & Memphis Railway Company |
| Court | Missouri Supreme Court |
Appeal from Greene Circuit Court. -- Hon. W. D. Hubbard, Judge.
Affirmed.
Haseltine Bros. and B. R. Brewer for appellants.
(1) The deed from the administrator to Michael Kane carried with it all the right, title and interest in and to the land in question, that Gabriel Shackelford had at the time of his death. Revised Statutes of 1889, ch. 1, art. 8, sec. 171. The order of sale of the land was valid. Van Bibber v Julian, 81 Mo. 618. This case establishes the validity of plaintiff's title. It was prior to any rights that defendant may have had by condemnation proceedings. (2) The proceedings had by defendant to condemn the land were invalid under section 2737, Revised Statutes, 1889. Because the damages were not separately assessed to the different owners and besides the parties proceeded against had no interest in the land sought to be condemned, and said proceedings were not against these plaintiffs, nor those under whom they claim. Statements if any made by Julian, the administrator who was not a party to the proceedings, could not bind these plaintiffs, who had no notice of such statements if any were made.
Wallace Pratt and J. C. Cravens for respondent.
(1) The condemnation proceedings were entirely effective to vest in defendant all the right, title and estate which G. P. Shackelford, deceased, had in the strip in controversy at the time of his death. His heirs were proper parties, and the only necessary parties to that proceeding. The title was fully vested in them, and any attempt on part of railroad company to invoke the exercise of the right of eminent domain against anybody but those heirs would have been nugatory and void. Lewis on Eminent Domain, secs. 320, 324, 325; Boonville v. Ormrod's Adm'r, 26 Mo. 193; Boynton v. Railroad, 4 Cush. 467; Swinney v. Railroad, 97 Ind. 586; Watson v. Railroad, 47 N.Y. 157. (2) The land having been appropriated and occupied by the defendant as its right of way and for its tracks and roadbed, long prior to the commencement of this suit, and long prior to said administration sale, and with the full knowledge of Kane at the time he purchased, the plaintiffs, as his heirs, cannot in any event maintain this action. Baker v. Railroad, 57 Mo. 265; Provolt v. Railroad, 57 Mo. 256; Gray v. Railroad, 81 Mo. 132; McClellan v. Railroad, 103 Mo. 295. (3) It follows, therefore, that the instruction to the jury to find the issues for the defendant was properly given, and that the judgment should be affirmed.
This is an action of ejection for a strip of land used by defendant for railroad purposes in Greene county. The judgment of the trial court was in favor of defendant. Plaintiffs appealed.
The facts lie within a narrow compass, and are all admitted.
The conflicting titles trace to Gabriel P. Shackelford as the common source.
Plaintiffs are the widow and heirs of Michael Kane, deceased, who, in his lifetime, bought a piece of land (including that in dispute) at a sale by Shackelford's administrator to pay debts of that estate. This sale occurred in 1884 and was duly perfected by deed to Mr. Kane. Its regularity is not questioned.
The order for the sale had been made by the probate court in 1879, but its execution was delayed by an appeal reported as Van Bibber v. Julian (1884), 81 Mo. 618.
Defendant claims title under proceedings to condemn the strip in question for public use as part of defendant's railway. These proceedings were taken and concluded in 1881 in the circuit court of Greene county. All the heirs of Shackelford were by name made individually parties defendant therein, were duly notified, and substantial damages, assessed by the commissioners, were paid into court for them.
No objection is urged to the formal sufficiency of the condemnation. Plaintiffs' contention is that the deed of the administrator, in 1884, conveyed to Mr. Kane "all the right, title and interest which the deceased [Shackelford] had in such real estate at the time of his death," as declared in section 171, Revised Statutes, 1889 (same as sec. 172 of 1879), notwithstanding the proceedings against the heirs of Mr. Shackelford, in 1881. The effect of these proceedings constitutes the vital issue in this appeal.
The statute regulating them contemplates that each known owner of land sought to be taken shall be made a party; and, among other specific directions on that point, declares that "it shall not be necessary to make any persons party defendant in respect to their ownership, unless they are either in actual possession of the premises to be affected, claiming title, or have a title to the premises appearing of record upon the proper records of the county." Revised Statutes, 1889, sec. 2734, same as sec. 892 of 1879.
Upon the death of Mr. Shackelford, intestate, his lands descended to his heirs who became the legal owners thereof. The title was subject to a liability to respond, in certain circumstances, for the debts of their ancestor; but, meanwhile, it was vested in the heirs. As owners they were the proper parties to the condemnation case by the terms of the statute. The administrator did not hold the legal title. Boynton v. Railroad (1849), 4 Cush. 467.
As to the rights of creditors, or of the administrator of Mr. Shackelford, to reach the fund awarded as damages, or to interpose in the condemnation case for their protection the facts before us do not require any expression of our opinion. The only question in hand is whether the legal title to the land was effectually reached by the proceedings against the Shackelford heirs.
The privilege of creditors of the estate to resort to the land and to subject the title of the heirs to debts of Shackelford certainly does not bring them as near...
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