Camden v. Plain
| Decision Date | 28 February 1887 |
| Citation | 4 S.W. 86,91 Mo. 117 |
| Parties | Camden et al., Plaintiffs in Error, v. Plain |
| Court | Missouri Supreme Court |
Appeal from Cass Circuit Court. -- Hon. Noah M. Givan, Judge.
Affirmed.
S. P Sparks for plaintiffs in error.
(1) The land of a decedent cannot be sold, except when the personal estate is insufficient to pay debts existing at the time of his decease. Aubuchon v. Lory, 23 Mo. 99; Farrar v. Dean, 24 Mo. 16; Wright v. Chambers, 24 Mo 482; Trustees v. McElhaney, 61 Mo. 541; Rithey v. Withers, 72 Mo. 556; Bollinger v. Kelly, 85 Mo. 561; Ferguson, Adm'r, v. Carson's Adm'r, 86 Mo. 673. (2) The application for the sale must affirmatively show that the facts exist which authorize the sale. Beal v. Harmon, 38 Mo. 435; Strouse v Drennon, 41 Mo. 289; Stuart v. Allen, 16 Cal. 473; Fitch v. Miller, 20 Cal. 352. (3) The application disclosed that the chief object of the sale was to provide a fund for "the estimated costs of administration, and that there was a large amount of taxes due in Johnson and Cass counties;" the probate court was without power to direct a sale for these purposes. Farrar v. Dean, supra; Teverbaugh v. Hawkins, 82 Mo. 180; 7 South. Law Rev. 647. (4) The proceedings of the administrator under the order of sale were, in contemplation of law, returnable to the next (July term, 1868) regular term of court, and the sale having been made after the next regular term, without any new order of sale, was illegal and void, and passed no title to the purchaser, because there had been a loss of authority or jurisdiction over the persons interested in the estate. Hughes v. Hughes, 72 Mo. 137; Macey v. Raymond, 9 Pick. 285; Marr v. Boothby, 19 Me. 150; Mason v. Ham, 36 Me. 573; Williamson v. Williamson, 52 Miss. 725. (5) The land which was sold lay in Cass county, was described in the petition, but it was not described in the order of sale, nor did the order so much as refer to the lands mentioned in the petition, but directed that "the whole, or so much of the real estate belonging to said estate as will be sufficient to pay the debts due and owing thereby." The testimony showed the decedent owned other lands in Johnson county, Missouri. Such order conferred no authority to make such sale. Greene v. Holt, 76 Mo. 677; Graham v. Hawkins, 38 Tex. 628. (6) It was essential to the validity of the sale that the report should have been approved by an order entered of record. The approval appearing on the minutes did not constitute an approval by an entry of record. Valle v. Fleming, 19 Mo. 454; Garner v. Tucker, 61 Mo. 431. (7) The terms of court, under the act creating it, were fixed on the first Mondays in January, April, July, and October, and the judge might change the time by making an order of record stating such change; but it was essential, to effect such change, that the notice required by the section should have been given, and that it had been should appear of record. Acts 1865-6, sec. 11, pp. 84, 88.
Railey & Burney for defendant in error.
(1) The administrator's deed, read in evidence by defendant, contains every recital required by law. It conveyed all the right, title, and interest, which the deceased had in such real estate at the time of his death, and was evidence of the facts therein recited. G. S., 1865, sec. 37, p. 499; R. S., 1879, sec. 172. (2) The orders and proceedings of said probate court, prior to the execution of said deed, are presumed to be regular and valid; and cannot be called in question in this collateral proceeding, unless a want of jurisdiction affirmatively appear upon the face of such orders and proceedings. Johnson v. Beasley, 65 Mo. 250, 264, 265, and cases cited; Sims v. Gray, 66 Mo. 616; Wilkerson v. Allen, 67 Mo. 588; State v. Evans, 83 Mo. 322; Moore v. Davis, 85 Mo. 468; Overton v. Johnson, 17 Mo. 445. Even the judgments of a justice of the peace, where the facts necessary to confer jurisdiction appear affirmatively upon the face of the proceedings in question, are not obnoxious to collateral attack. Jeffries v. Wright, 51 Mo. 220; Colvin v. Six, 79 Mo. 200; State ex rel. v. Six, 80 Mo. 61. (3) It devolved upon plaintiffs to show affirmatively a want of jurisdiction in the probate court. All the records and proceedings of said court, introduced in evidence by them, show a substantial compliance with every requirement of the statute. (4) It was competent for defendant to show title by adverse possession under his general denial. Nelson v. Brodhack, 44 Mo. 599; Bledsoe v. Sims, 53 Mo. 307; Lain v. Shepardson, 23 Wis. 224; Mather v. Hutchinson, 25 Wis. 27; Miles v. Lingerman, 24 Ind. 385; Marshall v. Shafter, 32 Cal. 176; Bruck v. Tucker, 42 Cal. 346, 351; Kyser v. Cannon, 29 Ohio St. 359; Bliss on Code Plead., sec. 356; Pomeroy's Remedies and Remedial Rights [2 Ed.] sec. 679. (5) It was admitted at the trial that the defendant, D. S. Plain, and his grantor, William A. Loudermilk, had been in open, notorious, continuous, and adverse possession of the premises ever since the month of October, 1868. This suit was commenced on the twenty-fifth day of February, 1884. So that defendant and his grantor, Loudermilk, were in the open, notorious, continuous, and adverse possession of the real estate in controversy, with their deeds duly recorded, in 1868 and 1878, for more than fifteen years prior to the commencement of this suit. (6) Under the admissions and record in the case, it conclusively appears that the statute of limitations began to run against Lewis Camden in October, 1868, and continued to run until the time of his death. Even if it should be inferred -- without anything appearing in the record to warrant the inference -- that Lewis Camden died before the full ten years run against him, yet the result would be the same. Because, when the statute commences to run against the ancestor, it will not cease to run, as against an infant heir. Smith v. Newby, 13 Mo. 159; Williams v. Dongan, 20 Mo. 186; Keeton's Heirs v. Keeton's Adm'r, 20 Mo. 530; Rogers v. Brown, 61 Mo. 195; Cunningham v. Snow, 82 Mo. 592; Fleming et al. v. Griswold, 3 Hill, 85; Jackson et al. v. Moore, 13 Johns. 513; Hogan v. Kurtz, 94 U.S. 773; Currier v. Gale, 3 Allen, 328; Eager v. Commonwealth, 4 Mass. 182; Angell on Lim. [6 Ed.] sec. 477; Wood on Lim. of Actions, pp. 7, 14, and cases cited.
This is an action in ejectment for one hundred and twenty acres of land in Cass county, Missouri, commenced in the circuit court of said county on the twenty-fifth of February, 1884; the plaintiffs claim as heirs at law of their grandfather, William H. Camden, who died intestate a short time prior to the twelfth of March, 1867, seized in fee-simple of the premises, leaving surviving him three children, his only heirs, one of whom, Lewis Camden, died prior to the first day of October, 1884, leaving plaintiffs his only children and heirs at law; the plaintiff, George, was born February 29, 1860, and William C., on the twenty-eighth of November, 1861. On the twelfth of May, 1867, James A. Horn was appointed administrator of the estate of said William H. Camden, deceased, by the probate court of Johnson county, qualified and entered upon the discharge of his duties as such. On the tenth day of January, 1868, said administrator presented a petition to said court, praying for an order for the sale of the premises for the payment of the debts of said intestate; the order was made, and the premises sold to one Loudermilk, who received a deed therefor from the administrator, and afterwards conveyed the same, by general warranty deed, to the defendant, who was in possession of the premises at the time the suit was instituted, the defendant and his grantor had been in the open, notorious, continuous, and adverse possession of the premises ever since October, 1868. Defendant claims title under the deed of said administrator and by virtue of the adverse possession aforesaid. The case was tried before the court without a jury, and the court found for the defendant and rendered judgment in his favor.
The deed from the administrator to the defendant's grantor is as follows:
"Whereas on the sixth day of April, A. D., 1868, the probate court of the county of Johnson, state of Missouri, at the April term, for the year, 1868, of said court, ordered, by an entry of record, that I, as administrator of said estate, sell, at private sale, for cash in hand, the southwest quarter of the southwest quarter of section number twenty-nine (29); the northeast quarter of the northeast quarter of section number thirty-one (31); and the northwest quarter of the northwest quarter of section number thirty-two (32), of township number forty-four (44), of range number twenty-nine (29), situate in the county of Cass, state of Missouri, or so much thereof as might be necessary to pay the debts of said estate; and whereas, previously to the day of sale, I, as such administrator, had said real estate appraised in due form of law by Harrison Hoover, Amos Holcomb, and Joseph S. Holcomb, three disinterested householders of said county, and immediate residents in the vicinity of said lands, who, on the nineteenth day of May, A. D., 1868, having first made the affidavit required by law, appraised said real estate to be of the value of nine hundred and sixty dollars, and so certified in their certificate of appraisement; by virtue of which said order of sale and appraisement, and the power in me by law vested so to do, I, as said administrator, did, on the eighth day of September, A. D., 1868, expose at private sale, for cash in hand, all the right, title, and interest which the said William H. Camden had in and to said real estate at the time of his death; and William A. Loudermilk being the highest and best bidder for said real estate, he bidding...
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