Carson v. Walker

• Decision Date: 31 March 1852
• Citation: 16 Mo. 68
• Parties: CARSON et al., Appellants, v. WALKER et al., Respondents.
• Court: Missouri Supreme Court

16 Mo. 68

CARSON et al., Appellants,

v.WALKER et al., Respondents.

Supreme Court of Missouri.

March Term, 1852.

1. The Legislature has the power to change the terms of courts, and to enact that all suits and process, which had been made returnable to the term as fixed by the old law, shall be returnable to the term as fixed by the new law.

2. Executions against the estates of deceased persons were legal in this state until the passage of the act, approved Dec. 30, 1826, which took effect from May 1, 1827.

3. Under the act of January 25, 1817, Sec. 5, taken in connection with the act of January 12, 1822, Sec. 28, where an execution against the estate of a deceased person was issued in less than 18 months after the date of the letters testamentary, but the sale of the lands under it did not take place until more than 18 months had elapsed, the sale is valid.

4. An execution issued within a period forbidden by law, on a judgment lawfully rendered in a court of general jurisdiction, is not void, but only voidable.

5. Under the statutes of this state, up to 1826, land which the testator had devised in trust for an infant child might be levied on and sold under an execution against the estate of the testator.

Appeal from St. Louis Court of Common Pleas.

On the 23d of June, 1850, the appellants filed a petition in the Court of Common Pleas of St. Louis county, stating that William Stokes died seized and possessed in fee of a lot of ground in the city of St. Louis, fronting forty feet on Main street, by one hundred and forty feet deep, and particularly describing its metes and bounds.

That said Stokes, by his last will, duly probated in September, 1823, gave John O'Fallon, in trust for Anne Carson, all his real and personal estate, to be held for her use till her marriage or attaining twenty-one years of age.

That at the decease of said Stokes, said Anne, his daughter, was only thirteen years of age, and that she married William Smith before she was twenty-one years old. That Smith died in 1842, and she married the appellant, Carson, in 1843.

On the 25th of January, 1834, O'Fallon, the trustee, conveyed to the said Anne, she being then the wife of Smith, all the real estate vested in him by the will aforesaid. In December, 1843, the said Anne re-conveyed to O'Fallon and Joab Bernard, in trust to her separate use, the property last mentioned.

In October, 1849, O'Fallon released to the said Anne, then Mrs. Carson, all his title and interest in the same.

That in 1833 the defendant, Isaac Walker, under some pretended title, entered into the possession of the premises, and has held them since, under some pretended judicial proceeding; but that the same are fraudulent and void. That if any sale was made, it was under an execution that issued, was levied, and sale advertised, prior to the expiration of eighteen months from the death of said Stokes; that the said property was incapable of division without injury thereto, and the sheriff pretends to have sold it for more than three times the amount of the debt.

That the other appellees were in possession, as tenants of Walker. The petition then prays for possession, and for an account of the rents, and a judgment for them.

Walker, Throgmorton and Byron, being the only defendants served with process, filed their answer October 10th, 1850, stating that they had no information sufficient to form a belief whether Stokes was well seized in fee at his death, or whether said Anne was then about thirteen years old, or what was her age, or whether she married Smith before she was of age. On the 9th of September, 1823, letters testamentary were granted to O'Fallon as executor of said Stokes.

On October 8th, 1824, Benoist recovered judgment against said executor in the St. Louis Circuit Court, for $664.07.

On the 17th of December, 1824, execution issued thereon to the sheriff of St. Louis county, and the same was levied on the property in dispute, and the said property was advertised for sale, and was sold on the 18th day of April, 1825, at the court-house door in the city of St. Louis, to Thomas Houghan, at the highest bid, $2050, and sheriff made the said Houghan a deed, dated April 19th, 1825.

On the 13th of December, 1829, said Houghan and wife, by their deed of that date, conveyed to Larkin Deaver.

On the 23d of February, 1820, said Deaver, by deed of that date, conveyed to Joshua Walker.

On the 5th of October, 1833, Joshua Walker and wife conveyed to Isaac Walker.

The defendants state that said judgment was a good and valid judgment, and that the said execution, advertisement, proceedings and sale, were in strict conformity with law, and under and by virtue of the same, and the subsequent conveyances, all the title of said Stokes was vested in the said Isaac Walker.

That immediately after the execution of the sheriff's deed to Houghan, he entered into possession of the premises adverse to all persons, and the possession has continued uninterruptedly down throughout the several purchasers to this time.

The defendants deny that the judgment, sale and proceedings were void or fraudulent. They had no notice thereof, if fraudulent. They deny that the premises were susceptible of division for the purpose of sale, without injury. That there were on the lot, at the time of sale, a brick dwelling-house, and a stone ware-house; and they were so placed on the said lot as to extend nearly across it, and said lot could not have been divided without injury to the same.

The evidence on the trial was as follows: The plaintiffs in the lower court introduced,

1. The will of Wm. Stokes, of which the only clause important here is in these words: “I give, devise and bequeath unto John O'Fallon, all my personal estate, upon trust, to dispose of the same as in his discretion he shall think fit. Also, I give, devise and bequeath to him all my real estate, upon trust, without making any forced sale or sacrifice thereof, to convert the same into money, and place into securities of the United States, and to apply the interest and such part of the principal, as may be necessary to the support, maintenance and education of my daughter Anne, who was thirteen years old on the 12th of May last, until she arrives at the age of twenty-one years, and then to pay and deliver to her the whole amount thereof, and all accumulations thereon. In case my daughter shall marry before twenty-one, with the consent of my executor, he may deliver to her such portion of the principal as he may think fit, to and for her own use and benefit. In case she dies, leaving a child or children, then the property to belong to such child or children; but in case of her death before twenty-one, without leaving any child or children, then I give the same to my executor for his absolute use and benefit.”

“I appoint John O'Fallon executor of my last will, and guardian of my daughter.”

2. The deed of John O'Fallon to Anne Smith, conveying to her all the real estate devised him in trust, by the will, dated January 25, 1835.

3. The deed of Anne Smith to John O'Fallon and Joab Bernard, conveying to them all her real estate, and all interest, legal or equitable, in any real estate, in trust, for the sole and separate use of the grantor.

This deed was made with Carson's consent, and in contemplation of marriage between him and the said Anne, dated December 28, 1843.

4. The deed of John O'Fallon to Anne Carson, releasing to her all his title to any property conveyed by the last named deed, dated October 15, 1849.

5. John O'Fallon was then introduced as a witness, and stated that he knew Wm. Stokes; that he resided in St. Louis, and died September 3, 1823; that the plaintiff, Anne, was his daughter and only child, and was the same Anne named in the will of said Stokes; that she married William Smith, May 20, 1829; that he always considered her of the age mentioned in the will. She was not twenty-one years old when she married Smith, who died late in 1842. That about two years after she married Carson.

That Stokes died seized and possessed of the property in dispute; and the same was then improved. That from the time of instituting this suit till now, and for two years preceding the institution of this suit, the yearly value of the premises was $2500 or $3000.

6. A marriage certificate, showing that the marriage between Anne Stokes and Wm. Smith took place May 5, 1829, certified by the minister, the Rev. Mr. Monroe, May 20, 1829.

John O'Fallon, cross-examined by the defendants, stated that he was present at the sale of the property by the sheriff, and bid for it; that $2000 was as much as could have been gotten for it; that the old buildings on it, at the time of the sheriff's sale, have been removed and others put in their place. Thinks they were put there by Deaver or Walker, some ten or twelve years ago; and if the property was in the condition it was at the sheriff's sale, it would not rent for more than $1000 per annum.

All this matter drawn out on the cross-examination was objected to by the plaintiff as irrelevant and illegal, but the court overruled the objection and would not exclude it from the jury, and the plaintiffs excepted to the opinion of the court.

That the property would not have brought so much if he, O'Fallon, had not attended and bid on it; that he made one Davidson, who was bidding, run the property up to $2000.

7. The plaintiffs then introduced Frederick Dent, as a witness, who stated that he knew Wm. Stokes; that Stokes died in possession of the property in dispute; that Anne, his daughter, was not twenty-one years old when she married Smith, and that, in 1820, the warehouse on the lot rented for $600. Cross-examined--Property fell in value in 1821-2, and continued depressed five or six years. After the sheriff's sale, there was a dwelling on the lot at the corner of Main and Vine, and this dwelling, and a shed that was attached to it, extended nearly the entire extent of the property on Main. It stood back from Main some ten...