Grayson v. Weddle

• Decision Date: 31 October 1876
• Citation: 63 Mo. 523
• Parties: LOUISA F. GRAYSON, et al., Plaintiffs in Error, v. JOEL WEDDLE, et al., Defendants in Error.
• Court: Missouri Supreme Court

63 Mo. 523

LOUISA F. GRAYSON, et al., Plaintiffs in Error,

v.JOEL WEDDLE, et al., Defendants in Error.

Supreme Court of Missouri.

October Term, 1876.

[COPYRIGHT MATERIAL OMITTED]

Error to De Kalb Circuit Court.

Samuel T. Loring, for Plaintiffs in Error.

I. The application for the sale of said decedent's lands must be by petition, setting forth whatever under the statutes is required to give the court jurisdiction of the particular case and subject matter thereof, which should be so set forth as to be good on demurrer.

The application must show a true account of amounts due to and by the estate, a correct description of the real estate, and of the character and value of the personalty. It should appear therein that the land belonged to the deceased at his death; that petitioners are administrators or executors, or creditors; or persons having a direct, pecuniary interest. Jurisdiction in these cases will not be presumed. (Ror. Jud. Sales, p. 100, § 260.) As to the petition and its contents, see Wagn. Stat. 94, § 10; p. 96, §§ 22, 23; Schell vs. Leland, 45 Mo. 294; Adams vs. Larrimore, 51 Mo. 131; Grignon, Lessee, vs. Astor, 2 How. [U. S.] 338; Cooper vs. Sunderland, 4 Iowa, 114; Griffith vs. Frazier, 8 Cr., 23; Florrentine vs. Barton, 2 Wal. [U. S.] 215.

Neither Ensworth's testimony nor that of Rose showed that the contents of either petition were sufficient to give the court jurisdiction over the land. Hence, the action of the court was coram non judice and null and void.

II. The record does not show that at the date of the petition either Vories, Woodson, or Ensworth were creditors of James Morgan's estate.

III. The record fails to show that a petition for the sale of the land was filed in court, by the administrator. If it was, the record shows that it was not acted on.

IV. The order of sale of November 7th, 1864, refers to an order, made at the October term, for publication of notice of the application for order of sale, and to the publication thereof. But the record shows no such order at the October term, and there is no proof of notice outside of the order of November. Hence, plaintiffs were never properly brought into court, and the order of sale was null and void. (Wagn. Stat. 96, §§ 26, 27; Pattee vs. Mowry, 59 Mo. 164.)

V. Prudence Morgan was appointed administratrix. There is no evidence that she was not during all the time acting as such. Hence, the court had no authority to order Banter alone to sell. (Gregory vs. McPherson, 13 Cal. 562; Wortman vs. Skinner, 1 Beasl. 538.)

VI. The report and record show that the sale was made in obedience to an order of said court, made at its February term, 1865. But the record shows that the court made no order at that term. For that reason the sale was null and void.

VII. The record shows that at the May term, 1865, said probate court did not approve said sale by the administrator. The court used the following language: “Said report is received by the court and ordered to be spread upon the record.” Such language was insufficient to show an approval.

VIII. Moore was the hired attorney of the estate of James Morgan, deceased, sworn to protect its interests. He pretended to purchase the lands in controversy for $3,600, ($1,200 down, $1,200 in six, and the balance in twelve months from sale,) from the administrator at private sale, and immediately sells it for over $6,000, receiving nearly $4,000 in cash, and the balance upon the same terms that he bought it. This transaction was not only fraudulent in law, but was fraudulent per se. Moore is in no condition to invoke the interposition of a court of conscience. (Hall vs. Vorhies, 45 Mo. 559; Thornton vs. Irwin, 43 Mo. 163; Grumley vs. Webb, 44 Mo. 445.) The defendants have no higher rights than Moore had. The record of the probate court imparted notice to both of these defendants, of the fraudulent and infamous transactions between Moore and the administrator.

IX. The court erred in appointing Brown administrator de bonis non, without notice to the parties interested, and more than five years after Banter's final settlement; and certainly it erred in ordering him, Brown, then to execute a deed to Moore's heirs.

H. K. White, with J. D. Strong, for Defendants in Error.

I. The evidence shows that defendants, in possession through mesne conveyances, claim under Wm. Moore, purchaser at an administrator's sale of lands belonging to plaintiff's ancestor, James Morgan. This sale was made to satisfy a mortgage, made by said Morgan, in his life time, to secure Silas Woodson, H. M. and A. H. Vories, and Ensworth, a debt due them, and to pay off other debts against his estate. Defendants therefore are in equity assignees of said mortgage and in possession, and the plaintiffs, who are heirs to the mortgagor, cannot maintain ejectment. They must resort to a bill to redeem. (Honaker vs. Shough, 55 Mo. 472; Jones vs. Mack, 53 Mo. 147; Jackson vs. Magruder, 51 Mo. 55.)

II. Secondary evidence of Ensworth and Rose as to the contents of the petitions of the mortgage creditors and of Banter, the administrator, for sale of the lands to satisfy the mortgage debt and other debts, was proper. The act of 1870-72 (Wagn. Stat. p. 1137), is cumulative and not exclusive. (McLean vs. Winchester, 17 Mo. 49.)

III. Plaintiffs contend that the county court had no jurisdiction to order sale of lands to pay the debts, because, as he alleges, the evidence fails to show that the petition described the lands in dispute, and did not identify them with the lands in controversy. The record shows that the petitions were filed. The testimony of the probate judge shows that the petitions were lost; that they were in due form, and contained a statement of all the facts necessary, and were accompanied by proper inventory and statements of account, is shown beyond cavil by the uncontradicted testimony of Ensworth and G. W. Rose; and they also show that they prayed for sale of the lands in dispute. They clearly identify the lands in dispute as those described in said petitions. (See Tutt vs. Boyer, 51 Mo. 425.)

IV. The finding of the probate court, when making its order November 7th, 1864, for sale of realty, that the personalty was insufficient to pay the debts of the deceased, is not reviewable in this proceeding. The heirs should have appealed from the order of sale, and cannot now attack it in this collateral proceeding. (Wolf vs. Robinson, 20 Mo. 459.)

V. The order of sale is based upon the petitions of both the creditors and administrator, and, taken in connection therewith, sufficiently describe the land. (Adams vs. Larrimore, 51 Mo. 130.)

VI. The reception of the report of sale and order that it be spread of record, taken in connection with the subsequent approval of the administrator's final settlement (and discharge of him), which settlement accounted for receipt and disbursement of the proceeds of said sale, constituted sufficient approval of said sale. (Jones vs. Manly, 58 Mo. 509; Worthington vs. McRoberts, 9 Ala. 247; 7 U. S. Dig. 264, § 96; Patter vs. Thomas, 58 Mo. 163.)

VII. There was no error in admitting deed by Wm. Banter, administrator. Although defective in not reciting an approval, yet the approval having in fact been made by the court, the deed passed the title and cannot be attacked here as a void deed. (Bobb vs. Barnum, 59 Mo. 394.)

VIII. There was no error in admitting in evidence the deed of Brown, administrator de bonis non. His appointment as administrator de bonis non, and his acts as such, cannot be contested or questioned in this collateral way. (Wagn. Stat. 98, § 36; Riley's Adm'r vs. McCord's Adm'r, 24 Mo. 265; Gridleys vs. Phillips, 5 Kas. 349.)

IX. If there were fraud on the part of Moore, no acknowledgment is shown to have been possessed by defendants, Weddle and Ranson, and if the land were still in the possession of Moore or his heirs, plaintiffs could not attack the transaction without tendering Moore the consideration paid by him with interest. (Bump. Fraud. Conv. p. 574; Drury vs. Cross, 7 Wal. 299.)

X. We assume that there was a revocation of the letters of Prudence Morgan, or disqualification to act, either by death or marriage. If she were alive, why was she not made a party in this suit. It is believed that the court will not assume or surmise facts of which the court below was not required to take notice.

The probate court, as the evidence shows, constantly and for years dealt with Banter as sole administrator, and, we may justly believe, he was such.

NAPTON, Judge, delivered the opinion of the court.

This was an action of ejectment for the east half of the southeast quarter of section 27, and the northeast quarter and the east half of the southeast quarter, and the northeast quarter of the northwest quarter of section No. 34, township 58, range 32, altogether 360 acres.

The plaintiffs were heirs at law of James Morgan.

The defendants set up a special defense based upon a sale of this land of James Morgan by his administrator, at which they were purchasers.

It is unnecessary to recite the details of the answer, as the questions presented arise on the proofs offered at the trial.

The records of the probate court, offered in evidence by the defendants, show that on February 17th, 1863, letters of administration on the estate of James Morgan, deceased, were issued to Wm. Banter and Prudence Morgan. Various accounts were presented against this estate in 1863, and allowed.

On June 7th, 1864, a petition is filed by H. M. Vories and others, praying the court to order the sale of certain real estate, and W. Banter, administrator, by his attorney, joins in this petition, and thereupon the court orders that said Banter give notice according to law that at the next term an order will be made to sell a sufficient amount of real estate to satisfy the said claims of Vories and others, and all other claims against said estate.

On August 1st, 1864, the court orders that a notice be given that the court will, at the November...