Grant v. Hathaway

• Decision Date: 15 December 1908
• Citation: 114 S.W. 609,215 Mo. 141
• Parties: GRANT v. HATHAWAY et al.
• Court: Missouri Supreme Court

114 S.W. 609

215 Mo. 141

GRANT v. HATHAWAY et al.

Supreme Court of Missouri, Division No. 2.

December 15, 1908.

1. DESCENT AND DISTRIBUTION (§ 75)—TITLE AND RIGHTS OF HEIRS.

The title to real estate vests in the heirs immediately upon the owner's death intestate, in the absence of a statute to the contrary, subject, however, to the administrator's right to sell it to pay debts of the estate, if the personal property is insufficient.

2. EXECUTORS AND ADMINISTRATORS (§ 388)— SALE UNDER ORDER OF COURT—TITLE OF PURCHASER.

The administrator's right to sell land, where the personalty is insufficient to satisfy the debts, relates back to intestate's death, and a sale of the land for that purpose, pursuant to an order of court, and the execution of a deed to the purchaser, passes title as against the heirs; but title remains in the heirs until such steps are taken.

3. EXECUTORS AND ADMINISTRATORS (§ 130)— REAL PROPERTY—RIGHT TO POSSESSION — EJECTMENT.

Rev. St. 1899, § 130 (Ann. St. 1906, p. 379), prohibiting an administrator from renting or controlling decedent's real estate, unless the probate court orders the land to be rented, in which case the administrator may maintain any action for the recovery of such real estate, negatives any right of the administrator to bring such action for any other purpose, and hence he could not bring ejectment against heirs to recover land for the payment of debts of the estate.

Appeal from Circuit Court, Callaway County; A. H. Waller, Judge.

Action by E. W. Grant, administrator of the estate of David S. W. Hathaway, deceased, against Charlie A. Hathaway and another. From a judgment for plaintiff, defendants appealed. Reversed.

N. D. Thurmond and J. W. Tincher, for appellants. David H. Harris and Robt. McPheeters, for respondent.

BURGESS, J.

This is an action in ejectment for 40 acres of land in Callaway county, Mo. In January, 1903, David S. W. Hathaway, deceased, of Davis county, Iowa, bargained to purchase two adjoining farms in Callaway county, Mo.; one consisting of 120 acres, and known as the Tyler farm, and the other 160 acres, owned by one Robert L. Smith. For the latter tract Hathaway agreed to pay $5,000. Smith executed a deed, conveying this 160 acres to D. S. W. Hathaway, and left it in the hands of real estate agents at Fulton for delivery to Hathaway. On March 9, 1903, Hathaway, accompanied by his son, Charlie A., and George W. Hamilton, a real estate agent, went to the law office of T. A. Boulware, in Fulton, and stated to him that he wanted said deed changed so that Charlie A. Hathaway should appear as grantee in the deed, instead of D. S. W. Hathaway. Boulware telephoned to Smith for permission to make the change, which permission was given, and the change was made accordingly. The elder Hathaway explained that the deed was made without consulting him, and that he wanted 120 acres of the land conveyed to his son, and the remaining 40 acres to himself. It was understood by Mr. Boulware that the old gentleman did not have enough money to pay the purchase price of the land, and that the son was to borrow a sum sufficient to make up the deficiency and give a deed of trust on the land conveyed to him to secure the loan. After leaving Mr. Boulware's office, the parties went to the office of Mr. Hamilton, where the latter, as instructed by the elder Hathaway, wrote a deed conveying 40 acres of this 160-acre tract to "David S. W. Hathaway, of the county of Davis, in the state of Iowa." Upon the 120 acres remaining in the hands of Charlie A. Hathaway a loan of $1,600 was then effected, and the purchase price of the whole tract of 160 acres paid in full to Smith, the original grantor. Charlie A. Hathaway had a little son, six years of age, named David S. W. Hathaway, after his grandfather, and he was present while these transactions were in progress; and the defendants claim, in their answer to plaintiff's petition, and endeavor to prove, that the grantee named in the deed to the 40 acres in controversy was David S. W. Hathaway, minor defendant, and not his grandfather. However, both Mr. Boulware and Mr. Hamilton testified at the trial that it was their understanding that the old gentleman was intended as the grantee, and not his namesake grandson. The elder David S. W. Hathaway went into immediate possession of the land in controversy, had it cultivated, and made improvements thereon. After his death, in August, 1903, his son, Charlie A. Hathaway, claimed this 40 acres of land for his infant son. There was considerable testimony on the question of ownership of this 40 acres; but, as it has little or no bearing on the main issue involved, we deem it unnecessary to dwell upon it further.

It developed that the estate of David S. W. Hathaway in Davis county, Iowa, his home, was insolvent, and letters of administration were issued by the probate court of Callaway county to E. W. Grant, of Callaway county, as administrator of the estate of David S. W. Hathaway in said county. Hathaway left a will, which was admitted to probate both in...