Hughes v. Sloan

• Court: Missouri Supreme Court
• Writing for the Court: Black
• Citation: Hughes v. Sloan, 102 Mo. 77, 14 S.W. 660 (Mo. 1890)
• Decision Date: 17 November 1890
• Parties: HUGHES <I>et al.</I> v. SLOAN <I>et al.</I>

14 S.W. 660

102 Mo. 77

HUGHES et al. v. SLOAN et al.

Supreme Court of Missouri.

November 17, 1890.

ADMINISTRATOR'S DEED — RECITALS — ACKNOWLEDGMENT — AMENDMENT OF PLEADINGS.

1. An administrator's sale of land made in 1841 is governed by Laws Mo. 1835, and not by Rev. St. 1845, and the deed, made in pursuance of such sale, which recites the date of the order of sale, the court by which the order was made, and the consideration, as required by Rev. St.1835, art. 3, § 22, is admissible, in ejectment, as evidence of the purchaser's title, though it does not show whether the sale was public or private, whether it was made during the session of any court, whether a report of the sale was made and approved, or whether the property was advertised for sale.

2. A certificate of acknowledgment of an administrator's deed which recites that the administrator appeared before the officer taking the acknowledgment, and that he was the same person whose name appeared in the deed as a party thereto as administrator, shows that the person making the acknowledgment was known to the officer granting the certificate, and substantially complies with Laws Mo. 1835, which requires a certificate of acknowledgment to state that the person making the same is personally known to the officer.

3. A court to which a cause of action has been transferred by change of venue has the same powers in regard to permitting amendments of the pleadings as were possessed by the court in which the action was originally brought; and such court may permit a petition in ejectment, which states that plaintiff is entitled to the possession of the land, to be amended so as to allege that both plaintiff and her husband are entitled to the possession.

BARCLAY, J., dissenting.

Error to circuit court, Clinton county; JAMES M. SANDUSKY, Judge.

Wm. Henry, F. B. Ellis, and J. F. Harwood, for plaintiffs in error. Crosby Johnson and Davis & Rogers, for defendants in error.

BLACK, J.

This is an action of ejectment brought by Martha J. Hughes and her husband, to recover 80 acres of land situate in the county of Caldwell. The venue of the cause was changed to Clinton county. The plaintiffs, having shown that Martha J. Hughes was the sole surviving heir of James Fugate, deceased, offered in evidence the following administrator's deed: "Whereas, I, William Jones, of the county of Caldwell, and state of Missouri, administrator of the estate of Edward Partridge, deceased, late of the county of Hancock, and state of Illinois, in pursuance of an order of the Caldwell county court made at their December term, bearing date the 8th day of December, 1840, have this day bargained and sold unto James Fugate, of the county of Caldwell, and state of Missouri, for, and in consideration of, the sum of fifty-two dollars and fifty cents, the receipt of which is hereby acknowledged, all the right, title, and interest that the said Edward Partridge had at the time of his death in and to the following lots, pieces, or parcels of land, situate, lying, and being in the county of Caldwell, and state of Missouri, or so much thereof as is vested in me by the above mentioned order, to-wit." The deed then goes on to describe the land, and is signed and sealed by the administrator, and bears date the 21st March, 1846. The acknowledgment is in these words: "State of Missouri, county of Caldwell — ss.: Be it remembered that on this, the twenty-first day of March, A. D. 1846, personally appeared before me, Joseph C. Hoord, clerk of the county court within and for the county aforesaid, William Jones, administrator of the estate of Edward Partridge, deceased, whose name appears in the foregoing instrument of writing as a party, as administrator aforesaid, and acknowledged the same to be his act and deed for the purposes therein named. In witness whereof, I have set my hand and affixed the seal of said court at office in Kingston, this, the day and date last aforesaid. [Seal.] JOSEPH C. HOORD, Clerk. By J. H. BRYAN, Deputy-Clerk." The bill of exceptions states that plaintiffs, in support of the deed, introduced evidence tending to prove that the records of the probate court of Caldwell county, including the records of the administration of the estate of Edward Partridge, were destroyed by fire; also further evidence tending to prove that the county court of Caldwell county, then having probate jurisdiction, approved the sale of the land described in the deed by an order entered of record, and that before said sale the land was appraised as required by law. The court, on a general objection made...