Gunby v. Brown

Decision Date30 April 1885
Citation86 Mo. 253
PartiesGUNBY, Appellant, v. BROWN, Public Administrator, et al.
CourtMissouri Supreme Court

Appeal from Grundy Circuit Court.--HON. G. D. BURGESS, Judge.


Broaddus & Wait for appellant.

(1) Injunction will lie to prevent cloud on title. Mechanics Bank v. The City of Kansas, 73 Mo. 556-9, and authorities cited; Harrison v. Utterback, 57 Mo. 519, and authorities; Vogler v. Montgomery, 54 Mo. 579. (2) The execution and sale made under judgment in the circuit court was valid and conveyed south half of land. Speer v. Sample, 4 Watts (Pa.) 367; Heard v. Sack, 81 Mo. 610; Union Bank v. McWharter, 52 Mo. 34; Coleman v. McNulty, 16 Mo. 173; Lewis v. Coombs, 60 Mo. 44. (3) The deed made upon execution sale from county court, though void, was color of title. Jackson v. McGruder, 51 Mo. 55; Hamilton v. Bogges, 63 Mo. 233; Rannels v. Rannels, 52 Mo. 109; Crispen v. Hannavan, 50 Mo. 536. (4) Color of title is evidence and notice of adverse possession which will ripen into title. Pillow v. Roberts, 13 How. 472; Wright v. Matson, 18 How. 50. (5) Ten years open, notorious, adverse and hostile possession make perfect title. Nelson v. Brodhack, 44 Mo. 597, 600; Allen v. Mansfield, 83 Mo. 688; Key v. Jennings, 66 Mo. 356. (6) Respondent is estopped by his laches. Dickenson v. Colgrove, 100 U. S. 578; Barnes v. Kay, 7 Ind. 301; Shaw v. Beebe, 35 Vt. 205; Peery v. Hall, 75 Mo. 503; Brown v. Brown, 30 N. Y. 519. (7) If the administrator was guilty of neglect, then the remedy of respondent was on the bond of prior administrator in first instance, and not against the land until that remedy was exhausted. Felix v. Southard, S. C. Mo. Oct. term, 1883. (8) Respondent Woodson was guilty of laches, and ought not now to be permitted to assert his claim against bona fide purchasers. Lansdale v. Smith, U. S. S. C., Oct. 1882, 16 C. L. J. 28; Landrum v. Union Bank, 63 Mo. 52; Evans v. Snider, 64 Mo. 519; Stevenson v. Saline County, 65 Mo. 430; Bliss v. Pritchard, 67 Mo. 190. This rule applies to claims in the probate court. Mooers v. White, 6 John's Chan. 375; Estate of Crosby, 55 Cal. 574; Gabriel v. Godfrey, 4 Mich. 315; 66 Ill. 224; 41 Iowa, 255.

Crosby Johnson for respondents.

(1) The sheriff's deed to Gideon & Woolsey was made during a session of the county court, not of the circuit court, and, for that reason, was void. It could only confer color of title. (2) The other sheriff's deed was made about one month after the death of Rogers and was, therefore, void. Swearingen v. Adm'r, 7 Mo. 421; Walker v. Carson, 16 Mo. 68; Miller v. Doan, 19 Mo. 650; Hardin v. McCanse, 53 Mo. 255; Wernecke v. Wood, 58 Mo. 352, and Wernecke v. Kenyon, 66 Mo. 547,and Brown v. Wood, 64 Mo. 547, where the same doctrine is enunciated. Also, Mitchell v. Maxent, 4 Wall. 237; Smith v. Reed, 52 Cal. 345; Wallace v. Swinton, 64 N. Y. 188; Cadmus v. Jackson, 52 Pa. St. 295. In Freeman on Execution (sec. 55), it is said that the weight of authority is that the power to issue execution is extinguished by the death of a sole defendant. (3) To the proposition that ten years' adverse possession makes perfect title there are well established exceptions. One of the exceptions is that the limitation does not begin to run until there is a person in existence who may contest the right of possession with the occupant. As Angell (Lim. sec. 54) says: “The term, cause of action, implies not only a right of action, but that there is some person in existence who is qualified to institute process.” The same principle is announced in McDonald v. Walton, 1 Mo. 726; Dillon's Adm'r v. Bates, 39 Mo. 292; Polk's Adm'r v. Allen, 19 Mo. 467. (4) The defendants were not guilty of laches in not seeking to obtain the order of sale sooner. (5) Plaintiff should have resisted the order of sale if interested in the estate and have appealed therefrom. Callahan v. Griswold, 9 Mo. 784; Shields v. Ashley 16 Mo. 471; Langworthy v. Baker, 23 Ill. 484; Hopkins v. McCann, 19 Ill. 484; Colson v. Baker, 1 Redf. 324; Hunter v. French, 86 Ind. A resort to equity is not the proper mode of obtaining relief. Casey v. Murphy, 7 Mo. App. 247; Bailey v. Ross, 68 Ga. 735.


A temporary injunction was awarded in this case, restraining the defendant, public administrator of Caldwell county, from selling the land in question for the payment of a debt of the estate of Samuel Rogers, deceased. On final hearing the injunction was dissolved. Rogers owned the half section of land now in question. He joined the confederate army in 1861, and died in Arkansas December 23, 1862. His death was not known in Caldwell county, the place of his residence, until after the sheriff's sale next mentioned. A judgment was rendered in the county court of that county in May, 1863, against Rogers and others on a bond of indebtedness to the school fund. Execution was issued thereon and the north half of the land sold to Woolsey and Gideon in October, 1863. A judgment was also rendered in the circuit court against Rogers in 1862, before his death, execution was issued thereon January 21, 1863, after his death, by virtue of which the sheriff sold the south half of the land to Woolsey and Gideon in October, 1863. In and prior to 1866, Murphy acquired conveyances from and through these purchasers to the entire land, and in that year the widow of Rogers also conveyed her interest in all of the land to him. These deeds were all duly recorded about their respective dates. The heirs of Rogers instituted a suit for possession of the land in the circuit court, in 1875 against Murphy, which resulted in a decree, rendered in 1876, divesting the heirs of all interest in the lands, with a general judgment against Murphy in their favor for eight hundred dollars.

In May, 1875, Murphy made a deed of trust upon the land securing a large debt and by virtue of the deed of trust the land was sold, in 1877, to the plaintiff. He has sold part of the land with covenants, to protect which and the residue of the land he prosecutes this suit and this appeal. In 1867, after both of the sheriff's sales and after Murphy took possession of the land claiming in good faith to be the owner thereof, Henkins was appointed administrator of Rogers. Nothing appears to have been done by him. In 1880 the defendant, public administrator, procured an order to sell the land to pay a debt allowed in 1869 in favor of Woodson and another, amounting to something less than two hundred dollars.

The sheriff's deed, made by virtue of the county court judgment, recites a sale at a term of the county court, and the circuit court does not appear to have been then in session. As the sale was not made during a term of the circuit court, it is for that reason conceded to be void, and so it has been ruled. McClurg v. Dollarhide, 51 Mo. 347. The execution on the other judgment was issued and sale made after the death of Rogers. Generally such sale is void. Wernecke v. Wood, 58 Mo. 352; Brown v. Woody, 64 Mo. 547, and authorities there cited. Whether this deed could be upheld on the doctrine of Lewis v. Coons, 60 Mo. 44, we need not stop to consider. In the view we take of this case it is not necessary to further consider this question, for it, at most, only affects one-half of the land. Though these deeds were void, one on its face, still they constitute color of title. Jackson v. McGruder, 51 Mo. 55; Hamilton v. Boggess, 63 Mo. 233. Moreover, they not only define the limits of his possession, but gave character to and notice of his claim.

But assuming without deciding, that, because Murphy perfected his title by a deed from the widow, and the decree of title from the heirs, he is to be regarded as holding the title through them, and subservient to a proper administration of the estate, the question arises whether there is any limit of time within which lands may be sold for the payment of debts by an administrator, and if so, what is the limit. There is no statute which prescribes the time within which the administrator must procure an order for the sale of real estate to pay debts of the estate. Nor is there any analogy between an ordinary judgment, and an allowance by the probate court of these demands, as to the time within which they may be enforced. Nor can the statute of limitations with respect to personal actions have any application. A proceeding to sell real estate is but a step to be taken in the course of the proper administration of the estate. The Chancellor in Mooers v. White,6 John Ch. R. 375, said: “But I am not prepared to admit that the executor or administrator can, at any time, and in his discretion, apply for, and be entitled to an order for the sale of real estate; and I am of opinion, that whatever may be the merits of the present demand, the defendant, as executor, is now too late to apply for a sale of the real estate, and that his capacity for that purpose is entirely extinguished.” Then, referring to the statutes, he proceeds: “I infer from them that the law intended that the executor or administrator should make his application with due diligence, and in a reasonable time, and if he does not, the judge or surrogate has, from the nature of his judicial trust, a discretion to reject the application. What is a reasonable time may be another question.” This doctrine has met with approval in many of the states where there is no statute of limitations applicable to such proceedings. Estate of Crosby, 55 Cal. 574; Estate of Godfrey, 4 Mich. 315; Woolf v. Ogden, 66 Ill. 224; McCrary v. Tasker, 41 Iowa, 255.

By our law the debts must be exhibited for allowance within two years from the grant of letters of administration. If the personal estate be insufficient to pay the debts, the administrator may disclose that fact by petition and have an order for the sale of real estate. If he fail to make such application any creditor may do so, upon giving...

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