Bray v. Adams

• Decision Date: 13 March 1893
• Parties: Bray, Appellant, v. Adams et al
• Court: Missouri Supreme Court

21 S.W. 853

114 Mo. 486

Bray, Appellant, v. Adams et al

Supreme Court of Missouri, First Division

March 13, 1893

Appeal from Barton Circuit Court. -- Hon. D. P. Stratton, Judge.

Affirmed.

Cole & Ditty and Vint N. Bray for appellant.

(1) The sale of real estate by an administrator without an order of court to sell, is void, and an administrator's deed will not pass title to land not described in the order of sale. Greene v. Holt, 76 Mo. 678; Evans v Snyder, 64 Mo. 516; Henry v. McKerlie, 78 Mo 433. (2) Before sale of real estate belonging to the intestate's estate, there must be a petition for such sale presented to the probate court in which the administration of such estate is pending. Revised Statutes 1889, sec. 145; Teverbaugh v. Hawkins, 82 Mo. 180; Jarvis v. Rusick, 12 Mo. 63. (3) While perhaps an order of approval may cure certain irregularities, it cannot by any retroactive effect impart validity to a void sale. Farrar v. Dean, 24 Mo. 16; Cunningham v. Anderson, 107 Mo. 376. (4) Parties who rely upon and offer in evidence a deed to support their title, cannot contradict such deed in a material particular such as the description. It is not admissible to reject a description which is definite and certain in a deed and incorporate other premises by a different description. King v. Fink, 51 Mo. 210; Hasenritter v. Kirchhoffen, 79 Mo. 239; 1 Pattison's Digest, par. 327, p. 211, title, Evidence and Cases Cited. (5) There being no ambiguity in the description contained in the administrator's deed, parol evidence was not admissible to contradict or vary the description. Jones v. Shepley, 90 Mo. 313; Kochring v. Muemminghoff, 61 Mo. 407.

H. C. Timmonds for respondent.

(1) Under the rules of appellate procedure, appellant's first assignment of error submits nothing to this court for consideration. Honeycutt v. Railroad, 40 Mo.App. 677; Supreme Court Rule 15. (2) A petition for the sale of real estate in the matter of the estate of Nathan Bray, deceased, was filed in the probate court. It will be presumed that this petition was sufficiently formal. Camden v. Plain, 91 Mo. 117; Rowden v. Brown, 91 Mo. 429; Sherwood v. Baker, 105 Mo. 475. (3) The orders of sale are sufficient; a general order to sell is sufficient. Jackson v. Magruder, 51 Mo. 55; Camden v. Plain, 91 Mo. 117. (4) The sale having been ordered, made, reported and approved, it will be presumed that all requisite antecedent steps had been taken. Price v. Ass'n, 101 Mo. 116; Sherwood v. Baker, 105 Mo. 476. (5) The administrator's deed is formal in every respect. It is evidence of the facts therein recited. Revised Statutes, sec. 171. (6) Where a deed contains two descriptions, one correct and the other false, the latter will be rejected as surplusage. 2 Devlin on Deeds, sec. 1016. Where one of two different descriptions applies to land which the grantor owned, and the other to land which he did not own, the former will be taken as the true description. 2 Devlin on Deeds, sec. 1016. Where the deed contains two descriptions equally explicit but repugnant to each other, that description will control which the surrounding facts show to best express the intention of the parties. 2 Devlin on Deeds, sec. 1038. Where the description applies to different tracts, a latent ambiguity results, which may be explained by showing which tract was claimed by the grantor. 2 Devlin on Deeds, sec. 1043. (7) The administrator having made the sale under order of the court, the sale having been duly reported and approved, and the purchase price paid, the purchasers acquired an equity for the legal title, which, notwithstanding an irregular deed or the want of any deed, would prevent the heir from recovering in ejectment. Henry v. McKerlie, 78 Mo. 419; Sherwood v. Baker, 105 Mo. 476. (8) In any phase of the case, the finding and judgment of the trial court was for the right party.

OPINION

Brace, J.

This is an action in ejectment for the recovery of lots 1 and 2 in block 6 in the original town of Lamar, Barton county. The defendants are in possession of the whole block 6. The answer was a general denial. The case was tried by the court without a jury; the finding and judgment were for the defendants, and plaintiff appeals.

The plaintiff is the only child and heir-at-law of Nathan Bray, deceased. It seems that on the plat of the original town of Lamar, block 6 was divided into two lots of equal dimensions by a line running north and south, and that these lots were numbered 1 and 2 respectively. That during the war the town was burned, and either then or before the original plat and the record thereof was destroyed, and there is no record evidence as to which half is lot 1 and which half is lot 2. The plaintiff introduced conveyances tending to show title in Nathan Bray, deceased, to lot 1 in block 6, and parol evidence tending to show that said lot is the east half of said block.

The defendants introduced evidence tending to show that lot 1 in block 6 is the west half of block 6, and to show title thereto under and by virtue of a sale and conveyance made by the administrator of Nathan Bray, deceased, to Crenshaw and Rundell, and mesne conveyances from them to defendants.

At the close of the evidence the plaintiff asked the court to declare the law of the case to be as follows:

"1. The court declares the law to be that in this cause the defendants are estopped by their administrator's deed introduced in evidence from denying that lot two (2) and the west half of block six (6) in the original town of Lamar, Missouri, are one and the same identical tract of land.

"2. The court declares the law to be that under the evidence the finding must be for plaintiff as to lot one (1), block six (6) described in the petition, and on behalf of the defendants as to lot two (2) in said block six (6)."

The court refused to so declare, and at the instance of the defendants gave the following declaration:

"1. The court finds from the evidence that lot one (1) in block six (6), and the west half of block six (6) are one and the same piece of land, and declares as a matter of law that the administrator's deed introduced in evidence operated to convey the title to the west half (1-2) of block six (6)."

The land in controversy was described in the administrator's deed as "lot 2, block 6, or the west half of block 6 in the town of Lamar."

I. There were no exceptions saved to the rulings of the court below on the admission of evidence, and the only questions presented by the record for review here arise upon the declarations aforesaid. One of those questions is the finding by the court as a matter of fact that lot 1 in block 6 is the west half of that block. Counsel for the plaintiff contend that the trial court committed error in so finding and the whole of the argument in their brief is devoted to the support of the contention, that the preponderance of the evidence is that lot 1 in block 6 is the east half of lot 6. A careful reading of the evidence fails to satisfy us that they are correct in this conclusion. But, were it so, there is abundance of evidence to sustain the finding of the court upon this question of fact, and, when such is the case in a trial at law, that finding is conclusive in the appellate...