Gunby v. Brown

CourtUnited States State Supreme Court of Missouri
Writing for the CourtBLACK
Citation86 Mo. 253
PartiesGUNBY, Appellant, v. BROWN, Public Administrator, et al.
Decision Date30 April 1885

86 Mo. 253

GUNBY, Appellant,
v.
BROWN, Public Administrator, et al.

Supreme Court of Missouri.

April Term, 1885.


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

REVERSED.

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;

[86 Mo. 254]

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,

[86 Mo. 255]

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.


BLACK, J.

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

[86 Mo. 256]

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...

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6 practice notes
  • Nettleton Bank v. Estate of McGauhey, No. 26233.
    • United States
    • United States State Supreme Court of Missouri
    • February 4, 1928
    ...jurisdiction on appeal without discussion or comment, in the following cases for the probate sale of land to pay debts: Gunby v. Brown, 86 Mo. 253; Ferguson's Admr. v. Carson's Admr., 86 Mo. 673; Desloge v. Tucker (Div. 1), 196 Mo. 587, 94 S.W. 283; In re Rombauer's Estate (Div. 1), 256 S.W......
  • Thomson's Estate, In re, No. 42416
    • United States
    • United States State Supreme Court of Missouri
    • February 11, 1952
    ...point out that the section fixes no time within which the application to sell shall be made. They call attention to Gunby v. Brown, 86 Mo. 253, holding that the application must be filed within a reasonable time, such reasonable time depending upon the circumstances of each case. Respondent......
  • Russell v. Gold's Estate, No. 12420.
    • United States
    • Court of Appeal of Missouri (US)
    • April 30, 1917
    ...taking any steps to enforce their claims. This they cannot effectually do. Derge v. Hill, 103 Mo. App. 281, 77 S. W. 105; Gunby v. Brown, 86 Mo. 253; Lile v. Kincaid, 160 Mo. App. 297, 142 S. W. 434; Weinerth v. Trendley, 39 Mo. App. Respondents claim that the act of 1895 (Laws 1895, p. 185......
  • Murphy v. De France
    • United States
    • United States State Supreme Court of Missouri
    • March 19, 1891
    ...until these claims are either barred by the statute or unavailable for the purpose of a sale, as held by this court in Gunby v. Brown, 86 Mo. 253, and then asks a court of equity to give him the land discharged of all claims or liens. It may be that De France may have been guilty of some ir......
  • Request a trial to view additional results
6 cases
  • Nettleton Bank v. Estate of McGauhey, No. 26233.
    • United States
    • United States State Supreme Court of Missouri
    • February 4, 1928
    ...jurisdiction on appeal without discussion or comment, in the following cases for the probate sale of land to pay debts: Gunby v. Brown, 86 Mo. 253; Ferguson's Admr. v. Carson's Admr., 86 Mo. 673; Desloge v. Tucker (Div. 1), 196 Mo. 587, 94 S.W. 283; In re Rombauer's Estate (Div. 1), 256 S.W......
  • Thomson's Estate, In re, No. 42416
    • United States
    • United States State Supreme Court of Missouri
    • February 11, 1952
    ...point out that the section fixes no time within which the application to sell shall be made. They call attention to Gunby v. Brown, 86 Mo. 253, holding that the application must be filed within a reasonable time, such reasonable time depending upon the circumstances of each case. Respondent......
  • Russell v. Gold's Estate, No. 12420.
    • United States
    • Court of Appeal of Missouri (US)
    • April 30, 1917
    ...taking any steps to enforce their claims. This they cannot effectually do. Derge v. Hill, 103 Mo. App. 281, 77 S. W. 105; Gunby v. Brown, 86 Mo. 253; Lile v. Kincaid, 160 Mo. App. 297, 142 S. W. 434; Weinerth v. Trendley, 39 Mo. App. Respondents claim that the act of 1895 (Laws 1895, p. 185......
  • Murphy v. De France
    • United States
    • United States State Supreme Court of Missouri
    • March 19, 1891
    ...until these claims are either barred by the statute or unavailable for the purpose of a sale, as held by this court in Gunby v. Brown, 86 Mo. 253, and then asks a court of equity to give him the land discharged of all claims or liens. It may be that De France may have been guilty of some ir......
  • Request a trial to view additional results

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