Agan v. Shannon

• Decision Date: 09 March 1891
• Citation: 15 S.W. 757,103 Mo. 661
• Parties: AGAN et al. v. SHANNON et al.
• Court: Missouri Supreme Court

15 S.W. 757

103 Mo. 661

AGAN et al. v. SHANNON et al.

Supreme Court of Missouri, Division No. 1.

March 9, 1891.

SALE OF DECEDENT'S LAND — DEED — DESCRIPTION — ACKNOWLEDGMENT — LIMITATIONS.

1. Land of a decedent, ordered to be sold by the administrator for debts, was described in the proceedings as the "S. E. ¼ of the N. W. ¼, and the N. E. ¼ of the S. W. ¼ of S. 25, T. 25, R. 29." The administrator reported that he had made the sale "in pursuance of an order of said court," describing the land in his report and deed as the "S. E. ¼ of the S. W. ¼ and the N. W. ¼ of the S. W. ¼" of said section. Held, that it would be presumed that the administrator sold the land described in the order of sale, and that the different description was a clerical mistake. BARCLAY, J., dissenting.

2. An administrator in 1858 sold land of his decedent for debts under an order of court, and executed a deed, which was acknowledged before the judge of probate. In his final settlement he accounted for the precise sum for which the land was sold, and there was no other property with which to pay debts. Rev. St. Mo. 1855, provided that if the report of sale was approved, then the administrator should make a deed. Held, that it would be presumed that the sale was confirmed, the statute not requiring an express order to that effect. BARCLAY, J., dissenting.

3. A certificate of acknowledgment in the probate court, which recites that the grantor, W. L. H. F., acknowledged the deed, etc., concluding: "In testimony whereof, I. W. L. H. F., judge of said court have hereunto set my hand," etc., and is signed, "M. L. W., P. J.," the judge's true name, — is sufficient. Overruling Lincoln v. Thompson, 75 Mo. 623. BARCLAY, J., dissenting.

4. Where land of a decedent is sold by the administrator for the payment of debts under an order of court it will be presumed, in the absence of evidence to the contrary, that the proceedings for the sale were regular. BARCLAY, J., dissenting.

5. Under Rev. St. Mo. 1855, p. 147, § 35, (Rev. St. 1889, § 168,) providing that a deed of land of a decedent, sold by the administrator under an order of court, is sufficient as to the description if it refers in apt and appropriate terms to the order of sale, certificate, and appraisement, etc., where an administrator's deed refers to the order of sale, etc., and also contains a description of the property which varies from that contained in such order, the description in the deed will be controlled by that in the order. BARCLAY, J., dissenting.

6. The running of the statute of limitations against the heirs of a decedent is not prevented by the fact that dower has never been assigned to the widow, where the widow, or some one claiming under her, is not in possession of the premises.

Appeal from circuit court, Barry county; L. G. HUBBARD, Judge.

Joseph Cravens, for appellants. N. Gibbs, for respondents.

SHERWOOD, C. J.

1. Ejectment brought by the heirs of Miller for land once owned by their father, which was sold by Frazier, the administrator of his estate, as long ago as 1858, for the payment of debts. The land inventoried, petitioned to be sold, ordered to be sold, and appraised under the order of the court was the only land of which there is any mention made in the records of the probate court down to that point and was the S. E. ¼ of the N. W. ¼, and the N. E. ¼ of the S. W. ¼, section 25, township 25, range 29, designated on the subjoined plat as D1, D2. But the administrator when he made report to the court of his sale to Le Grande stated therein

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

that he had sold the S. E. ¼ of S. W. ¼, and N. W. ¼ of S. W. ¼ of section 25, township 25, range 29, which land has been designated on said plat as M1, M2. In that report however, he distinctly states that he made the sale "in pursuance of an order of said court," after having the same appraised, etc. The only certificate of appraisement is the one already mentioned. Beyond question, the only land which the administrator could lawfully and rightfully sell to Le Grande was that mentioned in the order, and none other. No evidence, therefore, was necessary to prove that he sold that same land. Every one, even a private individual, is presumed by the law to perform his engagements and his duty. Here the administrator was acting in a quasi official capacity. Lenox v. Harrison, 88 Mo. 491, and cases cited. It will consequently be presumed that the administrator made but a clerical mistake when he inserted the wrong numbers in his report and in his deed. Looking at the abbreviated description of the land as contained in his report, it will be found that the mistake only consisted of but two letters, which have been italicized, changing an "N" to an "S," and changing an "E" to a "W;" and unless we make the presumption aforesaid we must conclude that the administrator sold the land which he had not been ordered to sell, and which had not been appraised.

2. And an examination of the record readily discloses that the sale was approved, though no formal order of approval was made to that effect. The statute requires no such order. It suffices if such approval be manifested in any one or more of a variety of ways inconsistent with the idea of non-approval. Here the deed was acknowledged before M. L. WYRICK, the presiding judge of probate, in open court, and in his final settlement the administrator accounts for the precise sum — $201 — for which the real estate sold. These facts, and the further fact that though the estate was indebted, had not wherewithal to pay its debts except by sale of its real estate, yet no resale was ordered, bringing this case fully within the rule laid down in Jones v. Manly, 58 Mo. 559; Grayson v. Weddle, 63 Mo. 523. The statute (Rev. St. 1855, p. 147, § 34,) provided that if the report of sale was not approved by the court the proceedings should be void, etc.; but that, if the report was approved, than that the administrator should make a deed, etc. Id. § 35. So that the fact that the administrator executed and delivered a deed to the purchaser carries with it a presumption of previous approval of the sale by the court. But what sale? The only rational answer to this question is, "the sale of the land previously ordered to be sold."

3. The certificate of acknowledgment is as follows: "State of Missouri, county of Barry. In the probate court of Barry county. May 3rd, 1859. Be it remembered that W. L. H. Frazier, administrator de bonis non of the estate of Andrew J. Miller, deceased, this day personally came into open court, and acknowledged the execution of the forgoing deed for the use and purposes therein contained, which acknowledgment is entered on the records of said court of said date. In testimony whereof, I, W. L. H. Frazier, judge of said court, have hereunto set my hand, and affixing my private seal, [seal] (there being no seal of office yet provided,) at office in Cassville, the day and year above written. M. L. WYRICK, P. J." Under the ruling in Lincoln v. Thompson, 75 Mo. 623, this certificate of acknowledgment would he bad, because, though professedly made in open court, and signed by M. L. Wyrick as presiding judge of the probate court, yet it is stated therein that W. L. H. Frazier was such judge, and this would render the certificate a nullity; but that case is not law, and we overrule it on the point mentioned, and hold the certificate good.

4. The deed of the administrator was duly put to record, and Le Grande went into possession of the right land in 1858, and he and his family remained in possession up to some time during the war, when, his death occurring, they shortly afterwards moved away, and remained away some four years. When they returned, and the land described by the correct numbers was sold at administrator's sale as that of Le Grande, and a deed made to the purchaser, who, and those claiming under him, have been in continuous possession ever since, i. e., from 1869, up to the time of bringing this ejectment in 1886. If the order to sell the land, made in 1858, and upon which Frazier, the administrator, acted, was not made at such a time that the publication necessarily...