Carey v. West

• Decision Date: 11 May 1897
• Parties: Carey et al., Appellants, v. West et al
• Court: Missouri Supreme Court

40 S.W. 661

139 Mo. 146

Carey et al., Appellants, v. West et al

Supreme Court of Missouri, Second Division

May 11, 1897

Appeal from Greene Circuit Court. -- Hon. James T. Neville, Judge.

Reversed in part; affirmed in part.

Geo Pepperdine and Lincoln & Lydy for appellants.

(1) The widow has the right, until dower is assigned, to occupy and enjoy the mansion house of her husband and the messuages thereto belonging, and can defeat ejectment brought against her. 1 R. S. 1855, sec. 21, p. 672; R. S. 1889, sec. 4533; Holmes v. Kring, 93 Mo. 452, loc. cit. 458; Gentry v. Gentry, 122 Mo. 202. (2) Dower must be assigned according to the law in force at the date of the husband's death (1862) which was before the passage of the homestead act. Walker v. Deaver, 79 Mo. 664. (3) No legal or equitable title passed to Sarah M. Harrington under the sale of August, 1866, as to the east three forties because there was no petition for the sale, no order of publication, and no order of sale of the lands reported sold. Evans v. Snyder, 64 Mo. 516; Greene v Holt, 76 Mo. 677, loc. cit. 679; Henry v. McKerlie, 78 Mo. 416. And the deed was a nullity, being made by a co-administrator to a co-administrator. Greene v. Holt, 76 Mo. 677, loc. cit. 680. (4) The final settlement and discharge or Sarah M. O'Day as co-administrator still left the estate in the hands of Hugh Boyd, her co-administrator, who from the records was never discharged. 1 Woerner's Am. Law of Administration, p. 395, sec. 179; State v. Green, 65 Mo. 530; State v. Rucker, 59 Mo. 24. Hence the appointment of Headlee as administrator de bonis non was a nullity. 21 Am. and Eng. Ency. of Law, p. 364, note 3; Post v. Caulk, 3 Mo. 35, loc. cit. 36; State v. Green, 65 Mo. 528; State v. Rucker, 59 Mo. 24; 1 Woerner's Am. Law of Adm., pp. 395 and 537, secs. 179 and 247. (5) After the administration was finally settled and the administrator was discharged, the court appointed another administrator de donis non to execute to her a deed, which deed was a nullity. Grayson v. Weddle, 63 Mo. 523; Long v. Joplin Mining Co., 68 Mo. 422, loc. cit. 427. (6) If the administrator sold these forties as he alleges in his report of sale (p. 37), he sold under the order of sale of July term, 1874 (p. 36), which order directs a sale, if made after the beginning of the October term, 1874, to be made at public sale. Having sold contrary to the order such sale passes no title. 2 Woerner's Am. Law of Adm., p. 1055, sec. 477; Filmore v. Reithman, 6 Col. 120, 130; McCully v. Chapman, 58 Ala. 325; Fambro v. Gantt, 12 Ala. 298. (7) The administrator sold more land than was contained in the order of sale of July term, 1874, under which he must have sold if at all, which fact alone voids the entire sale. 2 Woerner's Am. Law of Adm., p. 1056, sec. 477; Wakefield v. Campbell, 20 Me. 393, 400; Litchfield v. Cudworth, 15 Pick. 23, 32; Adams v. Morrison, 4 N.H. 166; Wells v. Mills, 22 Texas, 302, 303, et seq. (8) It nowhere appears from the probate records that such pretended sale was ever approved by the court; and unless an approval can be gathered from the whole record the sale must be held void. Jones v. Manly, 58 Mo. 559; Henry v. McKerlie, 78 Mo. 416; Moore v. Davis, 85 Mo. 464; Camden v. Plain, 91 Mo. 130. (9) It nowhere appears from the records or the evidence that the purchase price of the east three forties or any part of it, ever was used for the benefit of the estate and hence where the sale is void can not be recovered. 2 Woerner's Am. Law of Adm., pp. 1080 and 1081; Nowler v. Cort, 1 Ohio 236; Schaefer v. Causey, 8 Mo.App. 142; Evans v. Snyder, 64 Mo. 516; Mobley v. Nave, 67 Mo. 546. (10) The widow being in possession under her quarantine right, anything she expended by way of taxes or improvements can not be recovered from the heirs in an action for the assignment of dower, because she can not be said to have made such improvements in good faith, but made them resting in a title which she knew was bad, and could be defeated by the heirs at any time. 1 R. S., sec. 4645. (11) A return of the purchase price and costs of improvements can only be had where they have been expended in good faith for and on account of the land without notice of any frailty in the title, and for valuable consideration, and then only in so far as they have benefited the heirs and improved the land. Henry v. McKerlie, 78 Mo. 416, loc. cit. 428. (12) The purchaser, under a void sale, being only subrogated to the rights of the creditors whose claims the purchase money paid by him in good faith has extinguished, the rents and profits enjoyed by him must go toward the satisfaction of the claim of such purchaser. 2 Woerner's Am. Law of Adm., pp. 1080, 1081, sec. 485; Miller v. Palmer, 55 Miss. 323, 338; Dougherty v. Adkins, 81 Mo. 411, loc. cit. 416, 417; Honaker v. Shough, 55 Mo. 472, loc. cit. 475. (13) Where no assignment of dower has been made, the statute of limitations begins to run against the heirs and in favor of one claiming the mansion house and messuages by grant of the widow, from the time of her death and not before. Brown v. Moore, 74 Mo. 633; Jones v. Manly, 58 Mo. 559, loc. cit. 564; Holmes v. Kring, 93 Mo. 452, loc. cit. 458; Agan v. Shannon, 103 Mo. 661, loc. cit. 671; Null v. Howell, 111 Mo. 273, loc. cit. 278; Roberts v. Nelson, 86 Mo. 21, loc. cit. 25. (14) The court was not in position to adjust the equities between the parties until dower was assigned to the widow because the most valuable improvements might be located on the land set off to the widow, all of which might be destroyed before her death. (15) The widow stood in the nature of a tenant in common with the heirs, and as such could not purchase an outstanding title or incumbrance and set it up against them; but it is regarded as having been done for the benefit of the heirs as well as herself. Robinson v. Ware, 94 Mo. 678; Hickman v. Link, 97 Mo. 482; Allen v. DeGroodt, 105 Mo. 442.

Gideon & Gideon, J. M. Patterson and J. T. White for respondents.

(1) Although no title, legal or equitable, passed to Sarah M. Harrington, under the sale of August, 1866, to the east three forties, the report by the administrators shows these three forties were appraised and sold, which report of sale was approved by the probate court at the August term, 1866. She and her grantees have a clear equity for the return of the purchase money, interest and improvements made in good faith. Henry v. McKerlie, 78 Mo. 416, loc. cit. 428, and authorities cited. (2) In ordering of the estate into Headlee's hands by the probate court, and his appointment, the legal and conclusive presumption in a collateral attack is that the court properly and correctly passed upon the questions presented before appointing him. Johnson v. Beazely, 65 Mo. 250; Headlee v. Cloud, 51 Mo. 301; Brawford v. Wolfe, 103 Mo. 391; Macey v. Stark, 116 Mo. 481. (3) The proceedings of the probate court carry with them the same presumptions as any other court of record, and are not subject to collateral attack, and this doctrine applies to the appointment of Headlee, administrator de bonis non. Macey v. Stark, 116 Mo. 481; Johnson v. Beazley, 65 Mo. 250; Brawford v. Wolfe, 103 Mo. 391; Rogers v. Johnson, 125 Mo. 213; Green v. Tittman, 124 Mo. 375. (4) The sale of the three west forties was made in strict accordance with the order of sale, but if it were true that the sale took place, as contended for by appellants, at a term of court different from that prescribed by the order of the court, it is not void in a collateral attack. McVey v. McVey, 51 Mo. 406; Murray v. Purdy, 66 Mo. 606; Sims v. Gray, 66 Mo. 613. (4) While there was no formal order of the court approving the report of the sale of the three west forties by Headlee, the appointment of Julian to make a deed, as Headlee, the former public administrator, had died in the meantime, before executing a deed, and the acknowledgment of Julian's deed in open court to defendant Sarah M. West, had the effect of an approval. Headlee made settlement and accounted for $ 980, the amount of the proceeds of the sale of the land, all of which was consistent with the idea of approval, which may be manifested in a variety of ways. Grayson v. Weddle, 63 Mo. 537; Agan v. Shannon, 103 Mo. 666. (5) "The approval of the sale by the court need not necessarily appear by formal entry of an order. It is sufficient if the approval can be gathered from the whole record. The equity for title is then complete." Henry v. McKerlie, 78 Mo. 416; Moore v. Davis, 85 Mo. 464; Jones v. Manly, 58 Mo. 559. (6) The report of sale of January 6, 1875, recites that the sale was made November 1, 1874, when the order of sale was not made until November 13, 1874. This will be presumed by the court to be a clerical mistake. Price v. Springfield R. E. Investment Co., 101 Mo. 107; Loring v. Groomer, 110 Mo. 632; Jones v. Manly, 58 Mo. 559; Macey v. Stark, 116 Mo. 481, 499. (7) The courts look with disfavor upon attempts to overthrow titles at remote periods for trifling irregularities. Williams v. Mitchell, 112 Mo. 300; Burdett v. May, 100 Mo. 18. (8) Where the administrator has paid the debts in excess of personal assets he will be subrogated to the rights of the creditors and the land may be sold to pay him. 2 Woerner, Am. Law of Adm., sec. 469, p. 1039.

Burgess, J. Gantt, P. J., and Sherwood, J., concur.

OPINION

Burgess, J.

This is a proceeding, under the statute, by three of the daughters and heirs at law of Enoch Harrington, deceased, who died in April, 1862, against his widow, Sarah M. West, his other children and heirs at law, Tobitha Boyd and Wm. Enoch Harrington, and the other defendants, the vendees of Mrs West, to have the widow's dower assigned in land of which said Enoch Harrington died seized, lying and...