Agan v. Shannon
| Decision Date | 09 March 1891 |
| Citation | 15 S.W. 757,103 Mo. 661 |
| Parties | Agan et al. v. Shannon et al., Appellants |
| Court | Missouri Supreme Court |
October, 1890
Appeal from Barry Circuit Court. -- Hon. W. D. Hubbard, Judge.
Reversed and remanded.
Joseph Cravens for appellants.
(1) Legrand acquired the equitable title by the administrator's deed. Valle v. Fleming, 19 Mo 454; S. C., 29 Mo. 152; Jones v. Manly, 58 Mo. 559; Snyder v. Coleman, 72 Mo. 568; Long v. Mining Co., 68 Mo. 422; Exendine v. Morris, 76 Mo 416; Gilbert v. Cooksey, 69 Mo. 42; Henry v. McKerlie, 78 Mo. 416. (2) The doctrine of equitable estoppel applies to the plaintiffs under the circumstances in this case as shown by the evidence. Landrum v. Bank, 63 Mo. 48; Collins v. Rodgers, 63 Mo. 515; Johns v. Fenton, 88 Mo. 64. (3) If plaintiff ever had a cause of action, it is barred by the statute of limitations. Miller died in February, 1855. Mrs. Miller and family abandoned the land before it was sold, went to Arkansas, and there she married Gibson in 1857, and never pretended to set up any claim to the land until 1883; and in April, 1858, she made a deed to Legrand for her interest in the land. This deed should have been admitted in evidence as a circumstance at least showing her abandonment even if not properly executed. Although she had dower adjudged her in this land, and this court has held in Littleton v. Patterson, 32 Mo. 357, and Johns v. Fenton, 88 Mo. 64, that the statute of limitations does not run against a widow until dower is assigned her, the contrary doctrine has recently been established in this state that dower is barred by ten years' adverse possession. Robinson v. Ware, 94 Mo. 768; Beard v. Hale, 95 Mo. 16. So the intervening dower estate of Mrs. Gibson did not prevent the heirs from bringing this suit since 1869, that being ten years after Legrand took possession under his purchase. Appellants contend that the judgment for dower in favor of Mrs. Gibson is not binding upon them and does not estop them from setting up the statute of limitations as a bar in this case. (4) The question of quarantine cuts no figure in this case; and the decisions of our courts holding that widows may maintain ejectment to recover possession of the mansion-house, etc., under section 2205, Revised Statutes, have no application here. The record shows conclusively that the house where Miller lived and died was not on the land in dispute, but was on vacant land, hence he had no mansion-house within the meaning of the section cited, and the widow had no quarantine.
N. Gibbs, for respondents.
All the records of the administrator's sale, i. e., the administrator's report of the sale, the court's approval of the sale, the administrator's deed, and the acknowledgment thereof in open court, spread upon the records of the court, and fully describing the land sold, were read in evidence by the appellants; and all these records recited the sale of two other and different forties than those on which the land in controversy is situated. The appellants then introduced witnesses and undertook to prove by oral testimony that the land sold was the land in controversy; but all of those witnesses testified that they were not present at the sale and did not know what land was sold. So the evidence introduced by the appellants themselves conclusively proved that the lands sold by the administrator did not contain the land in controversy. The appellants had not acquired title to the land in controversy by adverse possession, because: First. The widow of Miller after his death, enjoyed the mansion house and plantation thereto belonging till after her marriage in December, 1857. Second. Legrand, under whom appellants claim, did not go into the mansion house, or upon the plantation till in 1858, which was after the widow had married, and she remained under the disability of coverture till in 1883, and her dower was not assigned till in 1884. Third. Said Legrand, on June 10, 1858, pretended to purchase from the widow of Miller, "all her right of dower" in the eighty acres on which the land in controversy is situated, and claimed he received from her a deed in writing therefor, and on June 12, 1858, he had said deed recorded on the deed records of said county, in book "E," at page 524, and ever thereafter claimed to own all her dower right in said eighty, and this deed (though informal as a conveyance of land) constitutes the only color of title to the land in controversy that Legrand and the appellants ever had. Fourth. The possession thus had and held by Legrand and those claiming under and through him (i. e., A. H. Brown, Joel Garner and appellants), was not adverse to the heirs till in 1884. Fifth. Their holding was under a claim of all of the widow's right, and her right was to enjoy the mansion house and all the plantation till her dower was assigned.
I. 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, was the southeast quarter of the northwest quarter, and the northeast quarter of the southwest quarter, section 25, township 25, range 29, designated on the subjoined plat as D 1, D 2.
DI
M.I
D2
But the administrator when he made report to the court of his sale to Legrand stated therein that he had sold the S. E. qr. of S. W. qr., and N. W. qr. of S.W. qr. of section 25, township 25, range 29, which land has been designated on said plat as M 1, M 2. In that report, however, he distinctly states that he made the sale "in pursuance of an order of said court" after having 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 Legrand was that mentioned in the order and none other. No evidence, therefore, was necessary to prove that he sold the same land. Everyone, 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 cas. cit. 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.
II. 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 the 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 debt, except by sale of its real estate, yet no resale was ordered, brings this case fully within the rule laid down in Jones v. Manly, 58 Mo. 559; Grayson v. Weddle, 63 Mo. 523. The statute, Revised Statutes, 1855, section 34, page 147, 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, then the administrator should make a deed, etc. Sec. 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.
III. The certificate of acknowledgment is as follows:
)
County, May 3, 1859.
Under the ruling in Lincoln v. Thompson, 75 Mo. 613, this certificate of acknowledgment would be bad, because, though professedly made in open court and signed by M. L. Wyrick as presiding judge of the probate, 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 overruled it on the point mentioned and hold the certificate good.
IV. The deed of the administrator was duly put to record, and Legrand 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 afterward moved away, and remained away some...
To continue reading
Request your trial