Grayson v. Weddle

• Decision Date: 31 October 1883
• Parties: GRAYSON et al., Plaintiffs in Error, v. WEDDLE.
• Court: Missouri Supreme Court

80 Mo. 39

GRAYSON et al., Plaintiffs in Error,

v.WEDDLE.

Supreme Court of Missouri.

October Term, 1883.

Error to DeKalb Circuit Court.--HON. J. P. GRUBB, Judge.

AFFIRMED.

S. G. Loring for plaintiffs in error.

H. K. White and Strong & Mosman for defendant in error.

HENRY, J.

This is an action of ejectment commenced by plaintiff in the DeKalb circuit court, for the east half of the southeast quarter of section 27, the northeast quarter and east half of the southeast quarter, and the northwest quarter of section 34, all in township 58, in DeKalb county.

The answer, in addition to a general denial, set up an equitable defense: in substance, that the probate court of said county made an order for the sale of said land for payment of debts of the estate of Joseph Morgan, who died seized of the land, and under whom, as his heirs at law, plaintiffs claim title; that at the sale so ordered, one Moore purchased the land, at the price of $3,700, its appraised value, and paid the purchase money; that the report of sale was approved by the probate court; that the administrator failed to make a deed to Moore, who sold the land to defendant Weddle, receiving a part of the purchase money, and delivering his bond for a title, on the payment of the balance; that after Moore's death, Weddle paid the balance, and instituted a suit against Moore's heirs to obtain a decree for title, in which a decree was rendered, vesting in him their title; that afterward, under a mortgage foreclosure, as to part of the land, and a purchase of the balance, defendant Ransom acquired title to all the land from Weddle, and is in possession; that after Moore's death, the administrator of Morgan's estate, who made the sale as such, executed a deed, as administrator, conveying the land sold by him under the order of the probate court, to Moore's heirs, except the east half of the southeast quarter of section 34, township 58, range 32, in lieu of which another tract was, by mistake, embraced in the deed, in which it was the intention to embrace said east half of the southeast quarter above described. It is also alleged that said administrator expended the purchase money received from Moore in payment of debts of said estate, and supporting and maintaining plaintiffs; that defendants and Moore and his heirs have made lasting improvements upon the land; and the prayer is that the court will, if it find against defendants that plaintiffs had the legal title, re-imburse them for purchase money, improvements, etc., or render a decree vesting the legal title in them, and for general relief.

The plaintiffs moved the court to strike out those parts of the answer alleging mistake in the deed made by the administrator, and that the purchase money received from Moore had been used in payment of debts of the estate and in support and maintenance of plaintiffs, and, also, the prayer of the answer. The court overruled the motion.

This cause was once before in this court, on error, and is reported in 63 Mo. 521, and it was then expressly ruled that defendants might amend their answer, with respect to the mistake in the deed from the administrator; and with regard to the other parts of the answer embraced in the motion, they were, in our view of the case, wholly immaterial, except the prayer of the answer, to which we see no objection. Nearly every question argued by appellants' counsel, in his brief, was passed upon, and decided adversely to appellant, when the cause was here before, and we shall, therefore, notice only such portions as were not then considered.

1. ADMINISTRATOR'S SALE: error in deed: equity to title.

The amendment with respect to the mistake made in the administrator's deed having been expressly sanctioned in the opinion of the court in this case delivered on the former occasion, was an intimation that if the facts as alleged in the answer were found for defendants, this would constitute an equitable defense to the action so far as...