Hall v. Farmers' & Merchants' Bank

• Decision Date: 14 June 1898
• Citation: 145 Mo. 418,46 S.W. 1000
• Court: Missouri Supreme Court
• Parties: HALL et al. v. FARMERS' & MERCHANTS' BANK et al.<SMALL><SUP>1</SUP></SMALL>

46 S.W. 1000

145 Mo. 418

HALL et al. v. FARMERS' & MERCHANTS' BANK et al.¹

Supreme Court of Missouri, Division No. 2.

June 14, 1898.

ADMINISTRATORS — POWERS OVER REAL ESTATE — NATIONAL BANKS — ULTRA VIRES — CORPORATIONS — DEEDS — EXECUTION — ACCEPTANCE — STATUTE OF FRAUDS — TRUSTS.

1. An administrator has only such powers over the real estate as are conferred by Rev. St. 1889, art. 7, § 129, by which he may rent the land of deceased to pay debts, in obedience to

a recorded order of the probate court, and take possession of same by its order, in which event he may maintain an action for possession. Hence he cannot maintain ejectment for the land, nor a suit to remove a cloud from the title, in the absence of an order.

2. The acceptance of a deed in trust by a national bank, though ultra vires, does not render the conveyance void, but only voidable. The sovereign alone can interfere.

3. The cashier of a national bank was its agent in its general routine business, and accepted a deed to it in its behalf, which, by direction of the grantor, he placed on record. Held an acceptance by the bank.

4. By Rev. St. 1889, § 2399, "a private corporation authorized to hold real estate may convey the same by deed, sealed with the common seal of such corporation, signed by the president or presiding member or trustee thereof." The by-laws of a corporation provided that the vice president might act in the absence of the president, but that he could do so only by order of the directors. Held, that a deed executed by the vice president in the absence of the president, but without authority from the directors, was invalid.

5. A deed signed by the vice president of a corporation, and sealed with its corporate seal, is prima facie valid.

6. By Rev. St. 1889, § 5184, all creations of trust of lands "shall be manifested and proved by some writing signed by the party who is" enabled to declare such trusts, or else they shall be void. Held, that where one executed a warranty deed to a bank, and mailed it to the bank, requesting it to accept and record it, and in the same envelope inclosed a quitclaim deed which he had prepared for execution, in which the bank was grantor and several of his children were grantees, and also requested the bank by his inclosed letter to execute it and return it to him, it manifested an intention that the bank should take and hold the title in trust, to be deeded by it to the children named in the quitclaim deed, and was sufficient to take the transaction out of the statute.

Appeal from circuit court, Grundy county; Paris C. Stepp, Judge.

Action by Homer Hall, as administrator, and another, against the Farmers' & Merchants' Bank and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

Geo. Hall & Son and Millard Patterson, for appellants. Harber & Knight and Thos. J. Beall, for respondents.

BURGESS, J.

This is an action by Homer Hall, administrator of the estate of J. H. Kerfoot, deceased, and Robert Earl Kerfoot, who sues by his next friend, Homer Hall, to set aside a deed made by said J. H. Kerfoot on October 28, 1891, to the First National Bank of Trenton, Mo., and a deed from said bank to the defendants Hervey Kerfoot, Lester R. Kerfoot, and Alwilda Kerfoot, dated October 9, 1893, by which was conveyed to said bank, and by it to said Hervey, Lester R., and Alwilda Kerfoot, part of lot 6, block 29, in Trenton, Grundy county, Mo., and to recover the possession of said land. The petition is in two counts; one in equity, the other in ejectment. Defendants recovered judgment in the court below, from which plaintiffs appealed.

James H. Kerfoot died at El Paso, Tex., on February 4, 1894, where at the time of his death, and for several years prior thereto, he resided with the defendant Mona Kerfoot as his wife, and their children, Hervey, Lester R., and Alwilda Kerfoot, who are defendants in this suit. He was never legally married to Mona Kerfoot, but for several years before his death he recognized her as his wife, introduced her as such, and always recognized the children as his. Their oldest child was born during the lifetime of Kerfoot's first wife, who died at Trenton, Mo., in the spring of 1886. By his first wife he had several children, all of whom died before their father, without issue, except his son Robert H. Kerfoot. While Robert H. Kerfoot died before his father, he left as his only heir his son, Robert Earl Kerfoot, one of the plaintiffs in this suit. On the 28th day of October, 1891, James H. Kerfoot owned and was in possession of the lot in question, and on that day, under an arrangement with R. M. Cook, cashier of the First National Bank of Trenton, Mo. (a bank duly incorporated under the act of congress), by which the lot was to be conveyed to the bank, and the title held by it, and to be thereafter conveyed to such persons as might be requested by said Kerfoot, Kerfoot conveyed to the bank by warranty deed the lot in question, for the expressed consideration of $1,400, and thereafter, to wit, on the 9th day of October, 1893, said bank, by C. H. Cook, its vice president, conveyed by quitclaim deed the lot to the defendants Hervey, Alwilda, and Lester R. Kerfoot. The other officers of the bank knew nothing about the arrangement between R. M. Cook and J. H. Kerfoot. This last-named deed was delivered by J. H. Kerfoot to the defendant Beall for the grantees therein named before his death. At the time of the commencement of this suit the Farmers' & Merchants' Bank of Trenton, Mo., was in possession of the lot in question as tenants of the grantees in the deed from the bank by Cook, of whom the defendant Patton is curator. An administrator, as such, has only such powers over the real estate of his decedent as are conferred upon him by section 129, art. 7, Rev. St. 1889. Under the provisions of that section he may rent the land of the deceased, where the probate court shall so order of record, in order to the payment of debts, and also order that the administrator take possession of such land, in which event he is authorized by that section to maintain an action for the recovery of the possession of the land. But, in the absence of such action by the probate court, the administrator has no control whatever of the land of his intestate. Thorp v. Miller (Mo.) 38 S. W. 931. At the death of a person owning land the title descends to his heirs or devisees, and his personal representatives take no interest therein except a naked power to sell it for the payment of his debts. The possession of the land, as well as the defense of the title, belongs to the heirs or devisees, and to no other person. The administrator has nothing whatever to do with it. Chambers' Adm'r v. Wright's Heirs, 40 Mo. 482. He cannot maintain ejectment for the possession of the land, nor can he maintain a suit to remove a cloud from the title thereto, in the absence of an order of the probate court, as before stated. There was, therefore, no error in the judgment of the trial court in so far as the administrator is concerned.

But it is contended by plaintiff Robert E. Kerfoot that the deed from James H. Kerfoot to the First National Bank conveyed no interest in the lot involved in this litigation and described in said deed, for the reason that the bank had no authority to accept it. Upon the other hand, it is insisted by defendants that it is well settled that national banks have power to deal in real estate for certain purposes, and that, if a bank accepts a deed to land, even under circumstances such as would make the act clearly ultra vires, or in violation of its charter, and although the government could object, still the deed would be good between the parties. By section 5137, Rev. St. U. S. p. 993, it is provided that: "A national banking association may purchase, hold, and convey real estate for the following purposes, and for no others: First. Such as...