Henry v. McKerlie

Decision Date31 October 1883
PartiesHENRY et al., Appellants, v. MCKERLIE.
CourtMissouri Supreme Court

Appeal from Livingston Circuit Court.--HON. E. J. BROADDUS, Judge.

AFFIRMED.

L. T. Collier for appellants.

W. C. & J. W. Samuel for respondent.

MARTIN, C.

The plaintiffs filed their petition in ejectment on the 4th day of April, 1879, to recover from defendant possession of 100 acres of land.

In 1864 one David S. Riffe died seized of this land, leaving as his heirs two minor children named Lois and Annie, who are the plaintiffs in this suit along with Clarence K. Henry, the husband of Lois. The defendant claimed title by virtue of a deed from George McKerlie dated March 3rd, 1869, conveying to him the 100 acres sued for. George McKerlie's title, as to 98 acres of the tract sued for, was derived from a sale made to him by William W. Walden, as guardian and curator of Lois and Annie, plaintiffs, on the 4th day of November, 1868. As to the remaining two acres it was derived from a sale made by R. Matson, as public administrator in charge of the estate of said David S. Riffe, deceased. His deed is dated November 13th, 1866, and includes some forty more acres not in controversy in this case.

In his answer the defendant denied the plaintiffs' right to the land, and set up an equitable defense to the effect that he had purchased at full value and paid the consideration; that he had made lasting and valuable improvements; that this was all done in good faith and without notice of the claim of plaintiffs, who resided in the same neighborhood, and had knowledge of the defendant's possession, acts and improvements. The answer contained a prayer that an account be taken, that his purchase money and all moneys expended for improvements, payment of taxes, etc., be refunded, and adjudged a lien or charge upon the land, concluding with a prayer for general relief. The replication of plaintiffs contains a denial of this defense, and a statement that the plaintiffs were minors until within a year before suit.

The evidence tended to sustain the allegations of this specia defense. It seems that defendant had paid $1,100 for the land, had expended $267 for taxes, and that his improvements were of the value of $1,966. The material question in the case relates to the sale by Walden, as guardian and curator of plaintiffs. The deed of the guardian contains no recitals of the appraisement, order of sale, or approvai of sale. There was also a slight mistake in its description of the land. The defendant intorduced the records of the probate court of Livingston county for the purpose of supplying these defects. They disclosed an application for an order of sale, an order of sale at private vendue, an order of approval and a certificate of appraisement. The order of sale was made on the 18th day of April, 1868, at the April term, and the sale was approved at the same, although adjourned, term on the 11th day of May, 1868. The only irregularity apparent in these proceedings consists in the action of the court approving the sale at the same term at which the sale was made, instead of the next regular term of the court, as required by law. Notwithstanding this defect, the court found that the defendant was possessed of the equitable title to the land. It permitted the misdescription in the deed to be corrected, and rendered judgment in favor of defendant.

The questions involved in this controversy have been considered by the Supreme Court in so many cases varying in their facts, that I propose to review its decisions for the purpose of ascertaining the equity which at the present day is administered in this class of cases. The embarrassment attending the defendant's title in this case was first encountered in the case of Wohlien v. Speck, 18 Mo. 563, in which the opinion was rendered by Judge Scott in 1853; and as there were several cases on the same title I will consider them first, in the order of their rendition, before noticing the other cases bearing on the same question.

In Wohlien v. Speck, 18 Mo. 563, the plaintiff sued in ejectment, deriving title as heir of the person who died seized of the land as lawful owner. The defendant's title came by sale conducted by the administrator of said deceased, under an order of the probate court. The sale was approved at the same term at which it was made, instead of the succeeding term, as required by law. There seems to have been no deed by the administrator. No equitable defense of any kind was interposed, and the court held that no title passed by the sale, rendering judgment for the plaintiff.

The defendant who had suffered defeat at law, brought a bill in equity against the plaintiff for the purpose of divesting the title of the heir and vesting it in himself. The opinion in this case was also rendered by Judge Scott, in 1855. Speck v. Wohlien, 22 Mo. 310. It was held that no legal or equitable title passed at the sale, and that the purchaser thereat had no equity for a title and could not call upon the heir to perfect it. It may be remarked in connection with this case that no equity for return of the purchase money or re-imbursement for improvements was set up in the answer, and no such equity was suggested or intimated by the court.

The controversy about the same title assumed another aspect a few years afterward in the case of Wolff and Speck v. Wohlien, 32 Mo. 124, in which the opinion was rendered by Judge Dryden, in 1862. It seems that the parties claiming under the administrator's sale, on notice to the heirs, moved in the probate court that the sale be approved again, some twelve years after it was made, and the court granted an order approving it. The heirs appealed from this order to the St. Louis land court, without any bill of exceptions. The case was taken thence by change of venue, and by consent of parties, to the St. Louis circuit court, where on trial de novo, the sale was disapproved. Thereupon the parties who had moved for the approval in the probate court, appealed from the decision of the circuit court disapproving the sale. But it was held by the learned judge rendering the opinion, that while an appeal from an order of approval was provided for in the statutes, there could be no appeal from an order of disapproval; which was in the nature of an order granting a new trial. When a sale was disapproved there had to be another sale. This final judgment of disapproval left the title in the same condition in which it was left after the sale and premature approval.

Another ejectment by the same party was attempted in the case of Speck v. Riggin, 40 Mo. 405, in which the opinion was rendered by Judge Wagner, in 1867, who held that the previous decisions had settled the title against the plaintiff, and that the suit presented nothing new to be determined.

In considering the cases which commenced and continued to appear in the reports after the beginning of the controversy about the title in Speck v. Wohlien, I will first notice Valle v. Fleming, 19 Mo. 454, in which Judge Scott rendered the opinion in 1854. In this case it was held, that an administration sale wanting the approval of the court was void; and that a receipt of the proceeds, especially by minors, could not validate it. It was held that the order of approval need not appear by formal entry or in express terms.

Valle's Heirs v. Fleming's Heirs, 29 Mo. 152, opinion by Judge Napton, in 1859. In this case the heirs of the deceased owner brought ejectment. The defendants, who claimed under sale by an administrator, which had not been approved, set up an equitable defense to the effect that the money paid by the purchaser at the administrator's sale had been applied by the administrator in lifting a mortgage from the land, and asking to be subrogated to the rights of the mortgagee. This was not an equity for the title, but rested upon the assumption that the sale was void, and that no title passed, either legal or equitable. The defendants claimed only the equity of a lien-holder, by reason of having in good faith paid off a certain lien, which inured to the benefit of the heirs. This equity was conceded to him, and possession denied to plaintiffs until payment of the amount so expended by defendants. The opinion went further and approved the doctrine which awards the value of improvements made in good faith by a purchaser at a void sale, believing his title to be good. Judge Scott dissented to the views held by the court.

Strouse v. Drennan, 41 Mo. 289, opinion by Judge Wagner, in 1867. In this case the sale was by a guardian under an order of the probate court, and the sale was approved the same day it was made. It was held that no title passed. No equity was set up by defendant.

Mitchell v. Bliss, 47 Mo. 353, opinion by Judge Bliss, in 1871. The report of an administrator's sale, under an order of the probate court, was approved at the same term at which it was made. It was held that no title passed, and that the court could not help out the execution of a statutory power. No equity was pleaded by defendant.

State to use of Perry v. Towl, 48 Mo. 148, opinion by Judge Bliss, in 1871. In this case the plaintiff brought suit on a guardian's bond to recover the proceeds of a sale made by the guardian under an order of the circuit court. The defendant pleaded that the sale was void because of approval at the same term at which it was made. This was held to be no defense, and the sale was pronounced valid. The court made a distinction between a premature approval of a sale by the circuit court and a similar approval by a probate court. It was held that as the former was a court of general jurisdiction, an order in it, however erroneous, could not be impeached in any collateral proceeding.

Castleman v. Relfe, 50 Mo. 583, opinion by Judge Wagner, in 1872. The purchaser at a guardian's sale brought suit against the guardian and others to cancel the unpaid purchase notes and to compel a return of the money paid by him on account...

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