Ainge v. Corby

• Decision Date: 31 October 1879
• Citation: 70 Mo. 257
• Parties: AINGE v. CORBY, Appellant.
• Court: Missouri Supreme Court

70 Mo. 257

AINGE

v.CORBY, Appellant.

Supreme Court of Missouri.

October Term, 1879.

Appeal from Buchanan Circuit Court.--HON. JOS. P. GRUBB, Judge.

REVERSED.

Silas Woodson and B. R. Vineyard for appellant.

1. The court below erred in permitting the plaintiffs to introduce the records of the probate court to show that it was not in session on the 18th day of September, 1863. The order for the sale required the administrator to sell on that day, during the session of the circuit, county or probate court, and in approving the sale at the next term, upon the report of the administrator, the probate court, having full jurisdiction, judicially determined “from the evidence heard, and the exhibits of the proof of publication of the sale, that the order of this court has been fully complied with in all things.” This judicial determination of the probate court of the matter is conclusive against all parties, especially in collateral proceedings. Johnson v. Beazley, 65 Mo. 250; Freeman v. Thompson, 53 Mo. 192. It was a final judgment from which an appeal lay. Wag. Stat., § 1, p. 119; Tutt v. Boyer, 51 Mo. 430; Wilson v. Brown, 21 Mo. 410.

2. The court below erred in permitting plaintiffs to introduce parts of the items in the final settlement of John Corby as administrator of the estate of Jeremiah Flaherty and Jeremiah Flaherty & Co. Lamothe v. Lippott, 40 Mo. 142; Overton v. Johnson, 17 Mo. 442; Murray v. Roberts, 48 Mo. 307; Barton v. Barton, 35 Mo. 158.

C. A. Mosman and Ben. Loan for respondents.

NORTON, J.

This is a suit by ejectment to recover the possession of certain lots in the city of St. Joseph, Buchanan county. The petition is in the usual form. The answer is a general denial, and it is therein set up as a further defense that the plaintiffs claim title through one Jeremiah Flaherty, who died in Buchanan county prior to 1863, that one John Corby became the administrator of the estate of said Flaherty, deceased, and in virtue of appropriate proceedings had in the probate court of Buchanan county, sold and conveyed by administrator's deed all the right, title and interest of said Flaherty in and to the real estate in controversy; that the purchaser immediately after entered into the possession of the premises with the full knowledge and acquiescence of Charlotte Flaherty, the widow of said Jeremiah Flaherty, and ancestrix of plaintiffs, and made valuable improvements costing $2,500; that the purchase money derived from said sale, amounting to $5,975, or a greater portion thereof, was paid to the said Charlotte Faherty, as heir and creditor of the said Jeremiah Flaherty, no part of which had been paid back or offered to be paid back, either by the said Charlotte Flaherty or the plaintiffs in this suit. By reason of all which defendant claims that plaintiffs are estopped from setting up title to the property sued for. The replication contained a denial of all the matters alleged in the answer, and also set up that the sale of said property was procured through fraudulent practices of Corby, the administrator. That part of the replication setting up fraud in the procurement of the sale, was, on motion, stricken out, and a trial being had plaintiffs obtained judgment, from which the defendant has appealed to this court.

1. ADMINISTRATOR'S SALE: record evidence: parol evidence.

The principal errors assigned are that the court erred in receiving improper and rejecting proper evidence. All the proceedings instituted by Corby as administrator in the probate court for the sale of the lots, were offered in evidence, and those of them which have a bearing on the controversy may be summarized as follows: The order of court authorizing the administrator of Flaherty to sell the real estate in dispute, directs him to sell “on the 18th day of September, 1863, and during the session of the circuit, county or probate court.” The report of the sale recites that the property was sold “on the 18th day of September, 1863, during the session of the probate court.” The administrator's deed recites a notice of the sale “on the 18th day of September, 1863, and during the session of the probate court,” and a sale in pursuance thereof. The order of court approving the sale recites that the report is fully approved, “it appearing * * that the...