Baker v. Henry

• Decision Date: 31 October 1876
• Citation: 63 Mo. 517
• Parties: GRISSAM A. BAKER, et al., Appellants, v. ANTHONY HENRY, et al., Respondents.
• Court: Missouri Supreme Court

63 Mo. 517

GRISSAM A. BAKER, et al., Appellants,

v.ANTHONY HENRY, et al., Respondents.

Supreme Court of Missouri.

October Term, 1876.

Appeal from Bates Circuit Court.

A. F. Holcomb & Wm. Page, for Appellants, cited: Strouse vs. Drennan, 41 Mo. 281; Allen vs. Moss, 27 Mo. 364; Haley vs. Bagley, 37 Mo. 363; Wannall vs. Kem, 51 Mo. 150; 41 Mo. 290; 48 Mo. 150; Garner vs. Tucker, 61 Mo. 427; Comm'rs, &c., of Talladega vs. Thompson, 15 Ala. 139.

Henry Flanagan, for Respondents, cited: Durfee vs. Moran, 57 Mo. 374; Broom's Leg. Max. 942; Bank of U. S. vs. Dandridge, 12 Wheat. 64; Jones vs. Manley, 58 Mo. 559; Wells' heirs vs. Fleming's heirs 29 Mo. 152; Bettison vs. Budd, 21 Ark. 578; State vs. Gowen, 7 Eng. [Ark.] 62.

SHERWOOD, Judge, delivered the opinion of the court.

Ejectment for the northwest quarter of the southeast quarter of section 34, T. 41, R. 32.

The answer asserted the validity of the title relied on for the defense, and claimed that Russell B. Fisher had bought the land sued for, at administration sale, duly made in conformity to the forms of law, etc., etc., and had received a deed therefor, paid the purchase money, which was applied to the payment of the debts of the estate--that of John E. Baker, deceased--and that subsequently defendant had bought the land of the heirs of Fisher and entered into possession, etc., and equitable relief was asked.

Plaintiffs were admitted to be the heirs-at-law of John E. Baker, deceased, and the only matter necessary to be solved is the sufficiency of the administration proceedings before referred to.

The deed of the administratrix, Mary A. Baker, to Russell B. Fisher bears date February 8, 1861, and is acknowledged on the day following. It recites in usual terms the order of sale of the land in suit, made at the May term, 1859, the sale thereof on the 6th day of February, 1860, the making of the report at the next May term, its approval thereat, and the payment by Fisher, the grantee, of the purchase money for the land, $80.

The plaintiffs contended, as they do here, that the administratrix had never made report of the sale, and that the same in consequence was never approved, and they, on this ground, attacked her deed to Fisher, and attempted to overthrow the prima facie case made by the deed (Wagn. Stat., 98, § 37) by the introduction of the probate records, pertaining to the estate of the decedent, Baker, which show that at the February term, 1859, the administratrix presented her petition for the sale of real estate; that at the May term, 1859, the law having met with compliance, a sale of the land in controversy was ordered on twelve months' time, the deed not to be executed but on complete payment of the purchase money; that the record is silent on the subject until the November term of that year (1859) when the sale directed at the May term is renewed; that the record is again silent till the May term, 1860, when the administratrix is “permitted to make report of the sale of the real estate heretofore ordered to be sold to the next term of this court.”

A similar silence, as before observed, then ensued, until the February term, 1861, when “comes the said administratrix, and on her motion it is ordered by the court that she be permitted to make report of sale of certain real estate, ordered to be sold by this court at the May term thereof, 1859.”

The defendants, however, on their part, introduced and read in evidence an additional entry from the probate record, showing that, at the May term, 1861, the administratrix made her first annual settlement, wherein, among other things, she charges herself “to amount sale of land $80.00.” They also, over the objections of plaintiffs, read in evidence a report of the sale of the land in question, reciting a sale thereof at the time mentioned in the deed to the grantee, and for the price named therein, and that his note with security had been given payable in twelve months for the purchase money as required by the order of sale. This report contains the other customary recitals, and is sworn to in his statutory manner by the administratrix on the 8th day of May, 1860. The objections to this report were various; that it was not marked “filed;” that it gave no evidence of having ever been presented to or passed on by the court; was not found among the papers of the estate, nor in...