Harney v. Donohoe

• Decision Date: 20 December 1888
• Citation: 97 Mo. 141,10 S.W. 191
• Parties: HARNEY et al. v. DONOHOE et al.
• Court: Missouri Supreme Court

10 S.W. 191

97 Mo. 141

HARNEY et al. v. DONOHOE et al.

Supreme Court of Missouri.

December 20, 1888.

1. CONVERSION — REALTY ACQUIRED BY ADMINISTRATOR — RIGHTS OF ALIEN HEIRS.

Rev. St. Mo. 1835, p. 51, § 2, provided that where a deceased had purchased real estate, and not completed payment, the administrator might complete the payment out of assets in his hands, "and such real estate shall be disposed of as other real estate." Held, that where an administrator completed payment under a contract made with the deceased, and took the title "as administrator," the property was not constructively changed to personalty, and held for the benefit of the next of kin, but remained realty for the benefit of the heirs; and that non-resident alien heirs, being incompetent to take realty, had no rights therein.

2. LIMITATION OF ACTIONS — RUNNING OF STATUTE — IN FAVOR OF ADMINISTRATOR.

The administrator having made final settlement, and received his discharge, and thereafter continued to occupy the land under claim of title, the statute of limitations began to run in his favor from the date of his discharge.

Appeal from St. Louis circuit court; SHEPARD BARCLAY, Judge.

Action by Mary Harney and others against Terence Donohoe and others, to compel the conveyance of certain property in the city of St. Louis. Judgment for defendants, and plaintiffs appeal.

J. M. Holmes, for appellants. Jay L. Torrey, for respondents.

BLACK, J.

This is a suit to compel the defendants to convey to two of the plaintiffs one-half of a lot 33 by 85 feet in the city of St. Louis. The agreed statement discloses the following facts: Francis Donohoe purchased the lot from O'Fallon in 1839, and received a bond for a conveyance, conditioned upon the payment of $450. Francis Donohoe died in September, 1842. At that time he had paid all the purchase price, except the sum of $10. Terence Donohoe, brother of the deceased, took out letters of administration in September, 1842, and, among other property, inventoried this title-bond. He made final settlement of the estate, and was duly discharged in September, 1847. "On January 1, 1844, Terence Donohoe, having personally completed the payment of the sum of $450, took a deed from John O'Fallon to the lot in controversy to `Terence Donohoe, administrator of Francis Donohoe, deceased.' From and after said conveyance he personally held open and notorious possession of and used and occupied said land in controversy for his own use, and improved it until the year 1878, when, without consideration, he conveyed the same to his son John F. Donohoe, and his daughter Margaret Kortzendorffer, defendants, in undivided equal portions." Francis Donohoe died, leaving as his nearest of kin his brother Terence, who became administrator, and who then resided in this state. He also left a sister, Margaret Reilley, and a brother, John Donohoe, both of whom resided in Ireland. John died there in 1867, leaving four children, Mary Harney and Ann Donohoe, the plaintiffs in this suit. They came to this state in 1856 and 1863. John Donohoe also left two boys, who have not been heard from for seven years and more. Neither Margaret Reilley nor her children, if any she had, ever left Ireland.

Under the statutes of this state, as they existed from 1835 to 1845, a resident alien could acquire real estate here by descent or purchase. St. 1835, p. 66; Rev. St. 1845, p. 113. These statutes did not apply to aliens non-residents of the United States. Wacker v. Wacker, 26 Mo. 426. Terence Donohoe, therefore, inherited the real...