Stark v. Kirchgraber

• Decision Date: 21 February 1905
• Citation: 85 S.W. 868,186 Mo. 633
• Parties: MAUD L. STARK et al. v. LIZZIE KIRCHGRABER, Appellant
• Court: Missouri Supreme Court

85 S.W. 868

186 Mo. 633

MAUD L. STARK et al. v. LIZZIE KIRCHGRABER, Appellant

Supreme Court of Missouri, Second Division

February 21, 1905

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

Affirmed.

Wright Bros. & Blair for appellant.

(1) The whole title was vested in defendant: First, by the conveyance by Sandy Jarrett; second, by the administrator's deed to defendant. (2) The order of the probate court approving the sale by the administrator to defendant was a judgment that can not be attacked in a collateral proceeding. The same is final. Covington v. Chamblin, 156 Mo. 587. (3) This attack on same is collateral. (4) The judgments of probate courts are entitled to the same favorable presumptions as are accorded to courts of general jurisdiction, and are no more subject to collateral attack. Cox v. Boyce, 152 Mo 583; Covington v. Chamblin, 156 Mo. 587. (5) The probate court has jurisdiction of the subject-matter and the parties and proceeded in a lawful manner. Cox v Boyce, 152 Mo. 581; Covington v. Chamblin, 156 Mo. 587. (6) In this proceeding the court has no power to divest and vest title. If the legal title to the four-sixths were vested in defendant, the trial court was powerless to divest her of the same. The action to quiet title is an action at law. (7) Lizzie Kirchgraber was interested in said estate. R. S. 1899, sec. 150.

O. T Hamlin for respondents.

The facts in evidence show that the proceedings in the probate court were under and by virtue of section 150, Revised Statutes 1899, which is as follows: "If such executor or administrator do not make such application, any creditor, or any other person interested in the estate, may make such application, giving twenty days' notice to the executor or the administrator." This statute contemplates an heir in said estate, when it speaks of another person interested, and the interest of Mrs. Kirchgraber, which was the title of Ona and Elias, was not such as to come within the statute. The reasons given in her notice of publication are not good and valid ones, as she was not interested as contemplated by that statute. The petition, the notice, and the order were not sufficient to warrant a sale of the real estate, and the sale under it conveys no title and was utterly and absolutely void, and left these plaintiffs unaffected in their interest. Appellant's title rests solely on the proceedings of the probate court; they being void, her title is void. The authority cited by appellant to sustain the point that the order of the probate court, approving the sale by the administrator to defendant, was a judgment that can not be attacked in a collateral proceeding (Covington v. Chamblin, 156 Mo. 687), does not affect this case, as the decision pointedly holds that the proceedings may be inquired into on two grounds, that of jurisdiction or fraud. Huff v. Land & Imp. Co., 157 Mo. 65; Garrison v. Frazier, 165 Mo. 40.

OPINION

FOX, J.

This cause is here upon appeal from the Greene County Circuit Court.

On the twenty-fourth day of February, A. D. 1901, the respondents, as plaintiffs, filed in the circuit court of Greene county their petition in the above-entitled cause, which said petition, omitting caption and style of case, is as follows:

"Come now the plaintiffs and say that they are the children of Sandy and Hulda Jarrett, deceased, and that at the time of the death of the said Hulda Jarrett she was the owner in fee simple of four acres of land off of the west end of the north half of the northwest fractional quarter of section 7, township 29 and range 21, said four acres being on the south side of the one-acre tract sold to Robert Stokes, and recorded in book 67, at page 4775, and lying and being in Greene county, Missouri.

"And they further state that each owns at this time one-sixth interest in said land, by virtue of being the heirs at law of Hulda Jarrett, deceased; they further state they are informed and believe the defendant claims some interest in said land.

"They pray the court to ascertain and determine the estate, title and interest of said party, respectively, in such real estate and to define and adjudge by its judgment or decree the title, estate and interest of the parties in said property."

To this petition the following answer was filed:

"Now comes the defendant in the above-styled cause and by leave of court, for her amended answer to plaintiffs' petition admits that she claims an interest in the land therein described, to-wit: The fee simple title, and further avers and states that she is the owner of the fee simple title in said land; that she is in possession thereof, and denies each and every other allegation therein contained."

Upon the trial of this cause, it was admitted that Sandy Jarrett was the common source of title. The facts, as shown by the testimony, including the documentary evidence introduced, are as follows:

"Sandy and Hulda Jarrett were husband and wife. Prior to February 21, 1888, Sandy had acquired the fee simple title to the land described in the petition, and on said date he signed and acknowledged a deed purporting on its face to convey said land to his wife Hulda. Hulda died October 2, 1890, leaving her husband, Sandy, and six children, to-wit, E. W. (Elias) Jarrett, Ona McCullah, Henry Jarrett, Ida Frost, Maud Stark and Grace Jarrett. The last named is not a party to this action. Sandy died November 3, 1900.

"On April 27, 1893, E. W. (Elias) Jarrett executed a deed conveying to S. C. Haseltine his interest in said land.

"On September 28, 1893, Sandy Jarrett, with S. C. and Emma L. Haseltine, executed a warranty deed conveying said land to L. K. Haseltine.

"On September 17, 1896, L. K. Haseltine conveyed his interest, which included the interests of Sandy and E. W. Jarrett in said land, to Joseph Kirchgraber.

"Ona McCullah executed a deed of trust on said land and, thereafter, the same was foreclosed, and on October 16, 1896, a trustee's deed was executed conveying the interest of Ona McCullah to Joseph Kirchgraber.

"Thereafter Joseph Kirchgraber died leaving said land to his widow, Lizzie Kirchgraber, the defendant."

The record is silent as to the date of grant of letters of administration on the estate of Hulda Jarrett, deceased; but it does appear that W. H. Pipkin was the former administrator of said estate, and turned over $ 27.75 to said Jarrett, husband of the deceased, by order of the probate court.

This was the last heard of that administration, so far as the record discloses, until this appellant, who is neither an heir nor a creditor of said estate, commenced the proceedings in the probate court to sell the real estate.

The first step taken in the probate court to sell this real estate was by this appellant; she gave the following notice to the administrator of the estate of Hulda Jarrett, deceased:

"To A. N. Foss, administrator of the estate of Huldy Jarrett, deceased: You are hereby notified that on April 20, 1897, I will file a motion in the probate court in and for Greene county, Missouri, asking to sell at public auction the following described real estate, to-wit: Four acres of land off of the west end of the following described land, to-wit: Four acres on the west end of the north half of the northwest fractional quarter of section 7, township 29, range 21, Greene county, Missouri. Said four acres being on the south side of the one acre sold to Robert Stokes, and recorded in book 67, page 495, in the recorder's office in Greene county, Missouri."

After the service of such notice upon the administrator, the appellant in this cause presented to the probate court the following petition:

"In the matter of the estate of Hulda Jarrett, deceased. A. N. Foss, administrator.

"Now comes Lizzie Kirchgraber, an interested party in the estate of the said Hulda Jarrett, deceased, and prays the honorable probate court of said county to order a sale of the real estate of the said Hulda Jarrett, deceased, at public auction, and states to the court that the administrator has sold the personal estate of the deceased as appears by the sale bill already filed, and of said personal estate, goods and chattels and payment of debts for said estate as follows, to-wit: sufficient to pay the debts of the deceased without selling the whole, the real estate mentioned, as follows: Four acres of land off of the west end of the following described land, to-wit: Four acres on the west end of the north half of the northwest fractional quarter of section 7, township 29, range 21, Greene county, Missouri, said four acres being on the south side of the one acre sold to Robert Stokes. Recorded in book 67, page 495.

"It is further stated by said Lizzie Kirchgraber that there is a large amount of taxes due on said land and has been sued for, and further that the estate has been in the hands of the public administrator for more than five years and should be settled up, and she recommends that the same be sold for the payment of the debts due by the deceased, or so much of said real estate as may be sufficient for that purpose, at public auction."

Upon the foregoing petition the probate court made the following order:

"In the probate court within and for Greene county, Missouri, May term, 1897. A. N. Foss in charge, administrator of the estate of Hulda Jarrett, deceased.

"Now on this day comes Lizzie Kirchgraber, an interested party in the estate of Hulda Jarrett, deceased, and presents to the court her petition praying for an order for the sale of so much of the real estate of said deceased at public auction as will pay and satisfy the remaining debts due by said estate and yet unpaid for want of sufficient assets accompanied by the accounts, lists and inventories required...