Aubuchon v. Aubuchon

• Decision Date: 10 March 1896
• Citation: 34 S.W. 569,133 Mo. 260
• Parties: Aubuchon et al., Appellants, v. Aubuchon, Appellant; Aubuchon et al., Respondents
• Court: Missouri Supreme Court

34 S.W. 569

133 Mo. 260

Aubuchon et al., Appellants, v. Aubuchon, Appellant; Aubuchon et al., Respondents

Supreme Court of Missouri, First Division

March 10, 1896

Appeal from St. Louis County Circuit Court. -- Hon. Rudolph Hirzel Judge.

Affirmed.

M Kinealy and James R. Kinealy for plaintiffs, appellants.

(1) At the time of the sale by the administrator and afterward until the sale was proved, George Aubuchon and his brothers and sisters were owners of the land described in petition as tenants in common. Sherwood v. Baker, 16 S.W. 531; Wohlein v. Speck, 17 Mo. 561. (2) The purchase at the administrator's sale, of the land described in the petition, by George Aubuchon, who with his brothers and sisters owned the land, inured to the benefit of all his brothers and sisters equally with himself, and he took title under the sale as a trustee for them and himself. Picot v. Page, 26 Mo. 420; Davis v. Givens, 71 Mo. 94; Campbell v. Laclede Gaslight Co., 84 Mo. 365; Lomax v. Gindele, 117 Ill. 527; Bracken v. Cooper, 80 Ill. 221; McPheeters v. Wright, 9 L. R. A. 170; Dray v. Dray, 27 P. 223; Barnes v. Boardman, 9 L. R. A. 571, and cases in notes, 7 Gen. Dig. 1239; Rozier v. Johnson, 35 Mo. 327; Boskowitz v. Davis, 12 Nev. 446; 11 Am. and Eng. Encyclopedia of Law, 1084; Gibson v. Winslow, 46 Pa. St. 380; Rothwell v. Dewees, 67 U.S.; 6 Lawson's Rights & Rem., sec. 2726, p. 4448. (3) And this is especially so, in view of the fact that George Aubuchon at the time of the sale was in possession of the land and several of his brothers and sisters were minors, naturally looking to him for protection and care. Carpenter v. Carpenter, 131 N.Y. 109, 110. (4) The court should have decreed partition as prayed by plaintiffs. See cases cited on preceding points. (5) We submit that the debts of the intestate are a lien on his realty from the instant of his death and that this is too well settled to be open to dispute. We also submit as a settled proposition, that all the estate of the intestate passes to the purchaser and can not pass by a conveyance of the heir and as one proof of that proposition we will call the attention of the court to the fact that the purchaser at the administrator's sale can set aside a fraudulent conveyance of the intestate but that the heir can not. We would respectfully refer the court to 5 Am. and Eng. Encyclopedia of Law, 264, par. 2, and notes; 292, last par. and notes; Thomas v. Thomas, 107 Mo. 459; Crook v. Tull, 111 Mo. 283; Brown v. Whitmore, 71 Me. 65; Valle v. Bryan, 19 Mo. 423.

Jas. A. Henderson for respondents.

The purchase at the administrator's sale of the land described in the petition by George Aubuchon did not inure to the benefit of his brothers and sisters, and he did not take title under said sale as trustee for them and himself. Woerner's Am. Law of Administration, sec. 314, p. 658; Rozelle v. Harmon, 29 Mo.App. 569; Selb v. Montague, 102 Ill. 446; Foote v. Overman, 22 Ill.App. 181; Page v. Culver, 55 Mo.App. 606. The statute of Illinois (sec. 98, R. S. 1891), authorizing an administrator to sell real estate, is based, like the Missouri statute (sec. 145, R. S. 1889), upon the insufficiency of the personal estate to pay the debts of the decedent and the mode of procedure is substantially the same, and the status of the real estate and rights of the heir from the death of the ancestor to completed sale, the same. While these cases are not directly in point, yet, if it be true, as asserted in them, that the sale by the administrator is equivalent to a sale by the heir, then it necessarily follows the purchase by George Aubuchon did not inure to the benefit of his cotenants, for one cotenant may purchase the interests of his other cotenants.

Macfarlane, J. Brace, C. J., and Robinson, J., concur; Barclay, J., does not sit.

OPINION

Macfarlane, J.

This suit is for the partition among the heirs of Ellen Aubuchon, deceased, of a small tract of land situate in the county of St. Louis. The ancestor died in 1880, seized of the land, leaving appellants and George Aubuchon as her sole children and heirs at law. Under an order of the probate court the land was sold in 1884 by the administrator for the payment of the debts of the deceased, and George Aubuchon, one of the heirs, was the purchaser, to whom a deed was made. The proceedings and sale were regular and the deed was in due form. The purchaser bid and paid the appraised value for the land. No fraud or misconduct is charged either against the administrator or the purchaser. George Aubuchon afterward died and respondents are his widow and heirs at law.

Appellants prosecute this suit for partition claiming as heirs of the said Ellen Aubuchon, deceased. This claim is made on the theory that the purchase by one of the heirs at the administrator's sale inured to the benefit of all. They ask a sale of the land and the payment to the heirs of George Aubuchon out of the proceeds thereof the amount paid on the purchase at the administrator's sale, and that the balance be distributed among the heirs of the said Ellen in proportion to their respective interests in this land.

The court held that the administrator's sale passed to the purchaser the absolute title and gave judgment for defendants, and plaintiffs appealed therefrom.

Appellants say in their brief that they wish to present but one question on this appeal, which they state as follows: "They contend that the purchase by George Aubuchon, husband of Louise Aubuchon and father of the other defendants, at administrator's sale, inured to the benefit of his brothers and sisters as well as himself."

The principle is well established in equity that tenants in common occupy such a relation to each other that one will not be permitted to purchase an outstanding title or incumbrance for his exclusive benefit and set it up against his cotenants, but such purchase will inure to the benefit of all who are willing to contribute their just proportion of the expense. This principle has received frequent recognition from this court. Picot v. Page, 26 Mo. 398; Dillinger v. Kelley , 84 Mo. 561; Hickman v. Link, 97 Mo. 482, 10 S.W. 600; Jones v. Stanton, 11 Mo. 433.

This rule is founded upon principles of good morals, as well as of the good faith and duty required of persons sustaining such relations of confidence and trust as exist between tenants in common. While their respective rights are severable and the interest of each may be sold either by his voluntary act or under process of law, yet they are all entitled to the joint possession and control of the property, and good faith forbids any one of them by any act of his own to disseize or dispossess...