Howell v. Jump

• Decision Date: 06 July 1897
• Citation: 41 S.W. 976,140 Mo. 441
• Parties: Howell et al. v. Jump et al., Appellants
• Court: Missouri Supreme Court

41 S.W. 976

140 Mo. 441

Howell et al. v. Jump et al., Appellants

Supreme Court of Missouri, First Division

July 6, 1897

Appeal from Greene Circuit Court. -- Hon. James T. Neville, Judge.

Affirmed.

McLain Jones, Wm. O. Mead and T. T. Loy for appellants.

(1) The presumption should be indulged that Dollison had in his mind a grantee living to whom he could deliver the deed when he made it. Identity of name is prima facie identity of person. Flournoy v. Warden, 17 Mo. 435; State v Moore, 61 Mo. 276; Gitt v. Watson, 18 Mo. 274; Globe Printing Co. v. Stahl, 23 Mo.App. 455; Hoyt v. Davis, 21 Mo.App. 235; Darrett v Donnelly, 38 Mo. 492, 494, 495; Railroad v Clark, 68 Mo. 371. (2) The first administration began in 1854 and a final settlement was made in 1857, and approved and the administrator discharged; at that moment the jurisdiction of the probate court over the estate of Joseph Cates was at an end. Garner v. Tucker, 61 Mo. 427; Miller v. Major, 67 Mo. 247; Sheetz v. Kirtley, 62 Mo. 417; VanBibber v. Julian, 81 Mo. 618; Melton v. Fitch, 125 Mo. 281. (3) Such order of approval has the force and effect of a final judgment and can only be attacked for fraud, and never in a collateral proceeding as is here attempted. Cooper v. Duncan, 20 Mo.App. 355; Henry v. McKerlie, 78 Mo. 425; Johnson v. Beazley, 65 Mo. 250; Rowden v. Brown, 91 Mo. 429; Brooks v. Duckworth, 59 Mo. 48; Vosler v. Brock, 84 Mo. 574. (4) The court in his finding of facts finds that no notice of final settlement was given and for that reason the approval of the final settlement of Tiller, administrator, was without authority or did not amount to a final settlement. After the lapse of forty years in the absence of testimony to the contrary it will be presumed that the proper notice was given. (5) A very proper question arises here as to when the plaintiff's cause of action accrued, if at all. We think it was in 1872. He then waits until all those most likely to know the facts are dead before moving in the matter. Courts of equity should scorn such claims. State ex rel. v. West, 68 Mo. 229; Lenox v. Harrison, 88 Mo. 491. (6) The record does not fix the dower of Edna Cates as covering the land here, and if it did there was no such seizure in her husband as will support dower. He neither had title or possession, nor was he in his lifetime entitled to either, hence the plaintiffs can not shield themselves from the statutes of limitation. (7) The plaintiffs are barred by the statute of limitation for ten years. They admit they were never in possession and never paid any taxes thereon, while defendant proves possession in himself and those under whom he claims for more than forty years. R. S. 1889, sec. 6764; Rogers v. Brown, 61 Mo. 187; Bliss v. Pritchard, 67 Mo. 181; Burgess v. Railroad, 99 Mo. 508. (8) The plaintiffs are barred by the thirty years statute of limitation. R. S., sec. 6770. (9) The last allowance against the estate of Cates was eighteen years old when this land was sold on the pretense of the payment of debts. Gunby v. Brown, 86 Mo. 258; Murphy v. De France, 105 Mo. 53; Swan v. Thompson, 36 Mo.App. 155; Mullen v. Hewitt, 103 Mo. 639; George v. Middough, 62 Mo. 549.

James R. Vaughan, R. L. Goode and H. E. Howell for respondents.

(1) There is no such presumption as that stated in the first proposition by appellant, at least no such presumption in the sense therein intended. (2) An interested party can not be permitted to manfaucture evidence of title by squatting upon a piece of land and claiming to own it. The statements of such a person are admissible against him, but never in his favor. Criddle v. Criddle, 21 Mo. 522; Blount v. Hamey, 43 Mo.App. 644. (3) There is competent evidence that Dollison, who entered the land, made a contract to convey to Cates, Sr. It was true that there was no evidence showing the loss of the original, but the case was tried upon the part of all parties concerned, upon the theory and with full knowledge that no such bond was in existence. (4) There is no clear evidence that Tiller, as such administrator, ever made final settlement. At the time mentioned the record shows that he made a settlement and was discharged, and ordered to go hence "without delay from this administration." The action of the court appointing Headlee administrator of the estate of Cates was legal and proper. The estate had not been finally administered. There were claims allowed which had never been paid in full, and there was land belonging to the estate which could be sold to pay such claims, and it was the proper action to take. Johnson v. Beazley, 65 Mo. 250; Dunn v. Bank, 109 Mo. 90; Brawford v. Wolfe, 103 Mo. 391; Macey v. Stark, 116 Mo. 481; Rogers v. Johnson, 125 Mo. 202. (5) The fact that Edna Cates had dower in the land, and that there was no adverse possession, was sufficient reason why respondent Howell took no earlier action. (6) If it should be considered that the description is ambiguous or indefinite, then testimony was clearly admissible, and in this case was offered to identify surrounding tracts, so as to satisfy the description and locate the land. Skinner v. Haagsma, 99 Mo. 208; Bollinger Co. v. McDowell, 99 Mo. 632; Bray v. Adams, 114 Mo. 489. (7) The thirty year statute of limitation is no defense to this case. The very basis of that statute is that the party out of possession, and against whom it is sought to be enforced, has been out of possession for thirty years without cause; that such party had the right to such possession, but never took it. (8) There is no limit as to time within which an order of sale can be applied for, for the sale of lands to pay debts of a deceased person. Macey v. Stark, 116 Mo. 481. (9) The finding on the facts and the judgment by the lower court are entitled to more deference in this particular case than in ordinary cases. The testimony was heard orally. There were many witnesses. Allen v. Logan, 96 Mo. 591; Lins v. Lenhardt, 127 Mo. 281; Bone v. Tyrrell, 113 Mo. 175.

Macfarlane, J. Barclay, P. J., Robinson and Brace, JJ., concur.

OPINION

Macfarlane, J.

This is a suit in equity to establish in plaintiff the title to a tract of land in Springfield. The petition is as follows:

"The plaintiffs state that heretofore, to wit, in 1854 one James Dollison, now deceased, was the owner of the following real estate, situate in Greene county, Missouri, to wit: [Here follows a description of this land.] That said Joseph Cates died in the latter part of 1854, and at and prior to his death said Cates was in possession of the property aforesaid claiming it as his own; that during the year 1854 said James Dollison had made a contract in writing with said Joseph Cates to sell and convey to the latter the said premises, and had placed the said Cates in possession of said premises under said contract, and so said Cates remained until after his death in possession thereof, and after his death, to wit, on January 5, 1855, said Dollison executed and acknowledged a deed which acknowledged full payment of purchase money of said tract, and which purported to convey the above described land to Joseph Cates, which said deed was on said date recorded in the office of the recorder of deeds of Greene county, Missouri; that neither of these plaintiffs knew said Cates was dead at the time said Dollison executed said conveyance to him until the summer of 1895, nor ever heard of said facts; or had any intimation thereof, until that time; that afterward said premises were administered on as being assets and real estate belonging to the estate of said Joseph Cates, deceased, by the administrator of said estate, under the orders of the probate court of Greene county, Missouri; that two and a half acres thereof were set apart by commissioners appointed by said court to one Edna Cates, widow of said Joseph Cates, deceased, as her dower interest in the premises aforesaid; that all the lands aforesaid were duly sold (subject to the dower of said widow) under orders of the probate court of Greene county, Missouri, in due course of administration by the administrator of the estate of said Joseph Cates, to pay the debts of said estate; that said sale occurred on or about April 25th, 1872, and plaintiff Howell purchased at said sale all the tract first aforesaid, including the part set apart to said Edna Cates, as widow, but subject to her dower, which sale was duly approved by said probate court, and a deed made to said H. E. Howell, by said administrator, conveying to said Howell all the right, title, interest and estate, at law or in equity, of the said Joseph Cates, deceased, of, in and to the premises first aforesaid, which deed was duly filed for record June 8th, 1872; that the said Edna Cates has been in possession of the portion of said premises allotted to her, as dower, until the year 1892, or thereabouts, when she departed this life; that otherwise and except said dower right, plaintiff Howell has been in possession of all the premises aforesaid, since his aforesaid deed, dated April, 1872, was delivered, claiming to own the same and every part thereof against all other persons whomsoever, except his own grantees of different parts of said tract; that the defendant, J. W. Jump, has wrongfully taken possession of the following part of said tract, which is included in the part of the premises first aforesaid, which was allotted said Edna Cates for her dower, to wit (describing a small part of the tract first described), and is now with defendant, S. C. Haseltine in possession of same, claiming to own it under certain deeds from the heirs of said Joseph Cates, deceased, and said S. C. Haseltine claims to own the same under conveyances from the heirs of James Dollison, deceased; that both said Cates' and said Dollison's heirs at...