Ayres v. King

• Decision Date: 29 March 1902
• Citation: 168 Mo. 244,67 S.W. 558
• Parties: AYRES v. KING et al.
• Court: Missouri Supreme Court

67 S.W. 558

168 Mo. 244

AYRES v. KING et al.

Supreme Court of Missouri, Division No. 1.

March 29, 1902.

PARTITION — INTEREST OF HEIR INDEBTED TO ESTATE.

Plaintiff obtaining judgment against E., and under execution thereon selling the undivided interest inherited by E. in lands of L., and at such sale buying such interest, is not entitled to partition, E. being insolvent, and indebted to the estate in excess of his interest therein.

Appeal from circuit court, Pike county; D. H. Eby, Judge.

Suit by Thomas J. Ayres, receiver of the Bowling Green Bank, against A. A. King and others. Judgment for plaintiff. Defendants appeal. Reversed.

Suit for partition of an interest in land owned by Joseph L. King, deceased, in his lifetime, who died intestate, leaving, as his heirs at law, his brothers and sisters who are defendants, and a brother, James E. King. The plaintiff recovered a jugdment for $7,904.93, against James E. King, and, shortly after the death of Joseph L. King, caused the undivided interest of James E., which he inherited from his brother Joseph, to be sold under execution on the judgment, and at such sale the plaintiff became the purchaser of that interest. The answer of the defendants, the other brothers and sisters of Joseph, sets up two defenses — First, that James E. King was indebted to his brother Joseph at the time of his death in the sum of $3,000 or more, which was more than his share in the estate was worth, and that he was wholly insolvent; second, that the estate of Joseph L. King was then in process of administration in the probate court, that claims to the amount of $7,000 had been duly allowed against the estate by that court, that there was not sufficient personal property to pay the debts, and the land would probably have to be sold for that purpose, and that in pursuance to an order of the probate court the administrator had taken possession, and was then in possession, of the land. Upon the trial it was admitted that Joseph, at the time of his death, owned an undivided one-fourth interest in the 320 acres described in the petition. Plaintiff introduced in evidence his judgment against James E. King and the sheriff's deed under execution, showing that at the sale plaintiff had purchased James' interest for $475. Defendants introduced evidence showing that A. A. King, one of the defendants, had been duly qualified as administrator of the estate; that administration was still bending; that claims to the amount of $6,754.30 had been allowed against the estate; that the personal property was worth about $6,000 in notes to be collected; whether there would be sufficient personalty to pay the debts was not then certain; a proceeding was pending in the probate court to have the land sold to pay debts; that James E. King, whose interest the plaintiff bought at the execution sale, was wholly insolvent, had been absent from the state two or three years, and not heard of since the death of Joseph; that James' indebtedness to the estate was $5,000 or $6,000, and his...