Gilbert v. Cooksey

• Decision Date: 31 October 1878
• Parties: GILBERT et al., Appellants, v. COOKSEY.
• Court: Missouri Supreme Court

69 Mo. 42

GILBERT et al., Appellants,

v.COOKSEY.

Supreme Court of Missouri.

October Term, 1878.

Appeal from Johnson Circuit Court.--HON. F. P. WRIGHT, Judge.

M. A. Fyke for appellants.

Crittenden & Cockrell and Elliott & Jetmore for respondent.

HENRY, J.

This is an action of ejectment instituted by plaintiffs to recover possession of lot two of the northeast quarter of section 1, township 46, range 24, in Johnson county. Plaintiffs claim the land as heirs at law of Jacob Gilbert, deceased, and defendants claim through a sale by the administrator of the estate of said Gilbert, under an order of the county court of Johnson county made in 1865. The sale was regular in all respects, embracing several other tracts of land, and the only question is, whether the land in controversy was included in said sale, and in the report of sale made by the administrator to and approved by the court.

Defendants rely, as a defense, upon an amended report of sale and deed executed accordingly, made by the administator of said estate after final settlement; and for an additional equitable defense, allege that the land in question was sold by the administrator, under order of court, for payment of debts; that the proceeds of sale were so applied; that at said sale Samuel Workman purchased this tract, with the other lands of the deceased, and paid for said lands $2,800, furnished by Mrs. Cooksey, taking a deed from the administrator to himself; that he afterwards conveyed all of said lands to Cooksey and wife by deed, including the land in question; that by mistake, the administrator omitted from his report a particular description of the land in controversy, but that by the general terms of the report it was embraced; that the same omission occurred in the deed, which, in the description of the land conveyed, followed that of the report. Counsel for appellants misconstrue the answer. It does in one place allege that this land was omitted from the report, but afterwards it distinctly states that the general terms employed embraced the land in controversy, and the first allegation in the answer on that subject evidently relates to a minute description of the tract.

The evidence shows that the lands particularly described in the report, and the tract in dispute, were all the lands owned by Jacob Gilbert, deceased, in the aggregate 353 74-100 acres; that the southwest quarter of the southeast quarter, and the east half of the southwest quarter of section 36, township 47, range 24, the east half of lot two of the northwest quarter of section 1, township 46, range 24, and lot two of the northeast quarter of section 1, township 46, range 24, amounted in the aggregate to 268 acres, and constituted a farm, the dwelling house and orchard of which were on the tract in dispute; that the west half of lot two of the northwest quarter and the west half of lot one of the northwest quarter section 6, township 46, range 23, contained 85 74-100 acres--the aggregate of all the land being 353 74-100 acres; that on the day of sale, the 10th day of June, 1865, the administrator of said estate, Wm. Zoll, delivered to said Workman a recerpt for $1,900, part payment for...