Bone v. Tyrrell
| Decision Date | 22 December 1892 |
| Parties | Bone et al., v. Tyrrell et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Knox Circuit Court.--Hon. Ben E. Turner, Judge.
Affirmed.
L. F Cottey for appellant.
(1) The law of this state upon the question of judicial sales made by the county and probate courts may be summarized as follows First. Where the sale of real estate can be shown to have been made in compliance with the statute, a good legal title passes to the purchaser. Second. Where the sale is irregular and not in compliance with the statute, so much so that it could not be upheld in a direct proceeding on appeal or otherwise, if the purchaser has in good faith fully complied with the terms of sale on his part, and paid the purchase money, the law creates an equity for a title, which the courts will enforce in favor of such good faith purchaser in possession, by denying recovery in ejectment. Third. When the deed is void, no title, legal or equitable, passes to the purchaser, but the law creates an equity in favor of a good faith purchaser at a void sale for the return of the purchase money, taxes paid and improvements made, with six per cent interest, which shall be a lien on said land for the benefit of such purchaser, and possession will be withheld until it is paid. Shroyer v. Nickell, 55 Mo. 264; Jones v. Manly, 58 Mo. 259; Evans v. Snyder, 64 Mo. 516; Sims v. Gray, 66 Mo. 613; Long v. Mining Co., 68 Mo. 422; Schafer v. Causey, 76 Mo. 365; Exendine v. Morris, 76 Mo. 416; Bagby v. Emberson, 79 Mo. 139; Henry v. McKerlie, 78 Mo. 416; Moore v. Davis, 85 Mo. 464; Camden v. Plain, 91 Mo. 117; Sherwood v. Baker, 105 Mo. 472. (2) The same liberal intendments attend the acts and doings of probate courts in regard to all matters within their jurisdiction and to which that jurisdiction has attached, as attend the acts and doings of courts of general jurisdiction, and such judgments are conclusive in collateral proceedings. Camden v. Plain, 91 Mo. 117; Rowden v. Brown, 91 Mo. 429; Price v. Real Estate Ass'n, 101 Mo. 107; Sherwood v. Baker, 105 Mo. 472, 476. (3) The sale must be held to be a sufficient compliance with the special act of the legislature found in the acts of 1855, page 558. See also Special Acts of 1860, page 651; Exendine v. Morris, 8 Mo.App. 383; Exendine v. Morris, 76 Mo. 416. (4) The bond given by John Bone, filed with the clerk of the county court, and approved by the county court was more nearly a compliance with the act of 1855 than was the attempted bond of Bennett a compliance with the act of 1860, which was held to be a sufficient compliance with said act of 1860. (5) The bond of John Bone, if not in literal compliance with said act of 1855, was, nevertheless, in all respects a fair compliance with the terms of said act, and was sufficient under said act to have protected "any person aggrieved by the unfaithful performance of said John Bone." Acts of 1855, page 558; Jean v. Horn, 94 Mo. 162. (6) The form of the deed was in strict compliance with the terms of said act. Hill v. Atterberry, 88 Mo. 114, and other like cases.
O. D. Jones for respondents.
(1) It is admitted the will of John Bone, Sr., vested in Elizabeth Bone a life estate, remainder in fee in her children, and the plaintiffs are her children and the heirs of those who were minors at the time of the death of John Bone, Sr., and the making of the deed to Callahan under which the defendants claim, and since deceased. Kinnie v. Matthews, 69 Mo. 520; Menier v. Land Co., 72 Mo. 473; Phillips v. LaForge, 89 Mo. 72; Waddell v. Waddell, 99 Mo. 338; Rodney v. Landau, 104 Mo. 250. (2) The special act plead in evidence is unconstitutional, both as to the state and federal constitutions. It is an attempt to take, and authority, if any, to take plaintiffs' property without "due" or any "process of law," and not according to "law of the land." (3) So the act was not complied with as to the requirement of a bond and reinvestment. (4) An order of sale, if properly made, is void if the sale is not approved. Valle v. Fleming, 19 Mo. 454; Evans v. Snyder, 64 Mo. 516; Patti v. Mowry, 59 Mo. 161. (5) No recovery of purchase money in such case can be had unless there was fraud in procuring the sale and their money for the deed. Carter v. Harber, 18 Mo. 204; Lewis v. Rogers, 23 Mo.App. 503; Maybery v. Moore, 90 Mo. 340; Harkless v. Barton Co., 85 Mo. 619. "When there is no fraud and a party accepts a quitclaim deed he is without remedy." Smith v. Funk, 57 Mo. 239. They succeeded to just such title as their grantors had. Kearney v. Vaughn, 50 Mo. 284; Broadwell v. Merritt, 87 Mo. 95; Schradski v. Albright, 93 Mo. 42. Such a deed does not create a right on which to found a claim for the recovery of the purchase money. Botsford v. Williams, 75 Ill. 132; Galloway v. Findlay, 12 Pet. (U.S.) 294; Patterson v. Tyler, 7 How. (U.S.) 132.
This is an action in ejectment for a tract of land in Knox county, in which the plaintiffs obtained judgment in the court below for five eighths of the premises, and the defendants appeal.
The facts are, that in 1849, John Bone, Sr., being seized in fee simple of the land in dispute, died, having first made a will by which he devised the same in manner following, to-wit:
"I also give and bequeath to my granddaughter the following real estate, to-wit: The east half of the northeast quarter of section 33; also the southwest quarter of the northeast quarter of section 33, all in township 63 of range 11, containing 120 acres, together with all the improvements thereunto appertaining, to have and to hold the same to her and her children, heirs of her body forever."
The granddaughter mentioned in this provision of his will was Elizabeth Bone, wife of John Bone, Jr., having at the time eight minor children.
By an act of the general assembly approved February 27, 1855, entitled "an act for the benefit of Elizabeth Bone and her children" reciting in the preamble the devise aforesaid, it was provided: "That John Bone and Elizabeth Bone, his wife, may, and they are hereby authorized to, sell said tract, given to her and to her children, heirs of her body, by John Bone, Sr., deceased, either at public or private sale, and convey the same to the purchaser or purchasers in fee simple absolute, by deed or deeds, executed and acknowledged in the usual form, free from all claim and title of the children of said Elizabeth, now or hereafter, the said John Bone first giving bond with sufficient security, payable to the state of Missouri, in double the value of said land, to be approved by the county court of said county, conditioned that, upon the sale of said land, he will faithfully reinvest the money arising from said sale in real estate in said state within a reasonable time thereafter, and take the title to the same to said Elizabeth Bone and to her children, heirs of her body, as said lands are devised to them by said will, which bond shall be filed in the office of the clerk of the county court, and may be sued on by any person aggrieved by the unfaithful performance of said John Bone." Laws 1855, p. 558.
Afterwards on the seventh of March, 1859 three of Elizabeth Bone's children having become of age, the said John Bone, Jr., was appointed by the county court of Knox county guardian and curator of the five minors, and on the next day qualified as such by executing bond in the sum of $ 1,000, approved by said court. Afterwards on the third day of May, 1859, upon the petition of the said John Bone as guardian and curator as aforesaid, representing that said minors had no personal estate and no means to defray the necessary expenses of their maintenance and education except their interest in said real estate, it was ordered by said county court that the "five eights of said real estate belonging to said minors be sold at private sale and if not sold at private sale to be sold at public sale at the courthouse door in the town of Edina at the October term of the circuit court, one third of the purchase money to be paid in cash, one third in twelve and the remainder in eighteen months, deferred payments to bear ten per cent. interest."
Afterwards on the fourteenth day of July, 1859, the real estate was duly appraised at the value of $ 1,200 for the whole tract, and of $ 150 for the share of each of said five minors, and the appraisement on the same day returned and filed in said court. It does not appear that any other or further proceedings were ever had in said court touching the matter. Afterwards on the twenty-seventh day of October, 1859, the said John Bone, Jr., Elizabeth his wife, and her three adult children executed, acknowledged and delivered the following deed:
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