Hutchinson v. Shelley
| Citation | 34 S.W. 838,133 Mo. 400 |
| Parties | Hutchinson v. Shelley, Appellant |
| Decision Date | 17 March 1896 |
| Court | Missouri Supreme Court |
Appeal from Osage Circuit Court. -- Hon. Rudolph Hirzel, Judge.
Affirmed.
Silver & Brown and J. W. Zevely for appellant.
(1) Where defendant in ejectment claims under an administrator's sale and deed, he is required to show in the first instance, only the deed, the order of sale, and the order of court approving the sale. Price v Association, 101 Mo. 107. (2) The court was authorized to order the sale of the land in question, although incumbered by the deeds of trust. R. S. 1889, sec. 143. (3) Besides, the judgment of the probate court on the question of the necessity of the order of sale of decedent's land for the payment of his debts is conclusive in a collateral proceeding. Rogers v. Johnson, 125 Mo. 202; Macey v. Stark, 116 Mo. 481; Camden v Plain, 91 Mo. 117. (4) There is no evidence in the record disclosing the value of the land; hence, so far as the record shows, the value of the land may not have exceeded the amount of the deeds of trust thereon. Both of the original McNamara mortgages were satisfied by the sale or transactions growing out of it. So far, then, as it appears in evidence neither the estate of John McNamara nor the plaintiff is injured. "One can not obtain relief in any court unless he shows he has been injured." Murphy v. De France, 103 Mo. 54. And the above is specially true where, as in this case, the defendant makes out a prima facie case by showing the administrator's deed, order of sale, and its approval by the court. Price v. Association, 101 Mo. 107. It was, therefore, incumbent on the plaintiff, in order to show that he had been injured, to prove the value of the land, and that the price at the administrator's sale was an inadequate one, and that it did not go to the extinguishment of the deeds of trust. This he has not attempted or pretended to do. The defendant having made out a prima facie case (as required by Price v. Association, supra) by showing the administrator's deed, the order of sale, and the approval of the sale, the plaintiff is not entitled to recover in the absence of facts properly pleaded overcoming such prima facie case. No such facts were set up or attempted to be set up in the replication. Facts constituting an estoppel in pais, to be available, must be specially pleaded. Throckmorton v. Pence, 121 Mo. 50; Avery v. Railroad, 113 Mo. 561; Noble v. Blount, 77 Mo. 235; Bray v. Marshall, 75 Mo. 327. (5) The trial court determined the case on the theory of fraud and collusion on the part of Quinn and the defendant and the administrator; whereas no such issue was made or tendered by the pleadings. A recovery can only be had on the issues made by the pleadings. Glass v. Galvin, 80 Mo. 297; Moffatt v. Conklin, 35 Mo. 453. And the facts constituting fraud must be pleaded; it is not sufficient to even charge fraud in general terms. Hoester v. Sammelman, 101 Mo. 619. (6) The administrator's deed conveyed the legal title to Quinn and he conveyed to defendant herein, and the plaintiff's remedy, if any, is in equity to divest title, and not at law. The fact that defendant pleaded the facts relating to his purchase and the proceedings of the probate court did not convert the case into an equitable one. All said facts were admissible under the general denial contained in the answer. Hart v. Steedman, 98 Mo. 452. A trustee or mortgagee after condition broken has the legal title, and may recover in ejectment. Johnson v. Houston, 47 Mo. 227; Siemers v. Schrader, 88 Mo. 20; Bailey v. Winn, 101 Mo. 656; Priest v. St. Louis, 103 Mo. 657. (7) The court should at most have reimbursed defendant for the amount expended in improvements and in extinguishing the second mortgage on the land. It went to extinguish a lawful lien on the same. Henry v. McKerlie, 78 Mo. 416; Foote v. Clark, 102 Mo. 408; Cunningham v. Anderson, 107 Mo. 371; Throckmorton v. Pence, 121 Mo. 50. To entitle a person to set aside a deed, even when obtained from him by fraud, he must offer to return the consideration paid. Thompson v. Cohen, 29 S.W. 885. The reimbursement ought always to be made where, as in this case, the consideration for the land went to extinguish a lawful lien thereon. Murphy v. Smith, 86 Mo. 333. The foregoing is specially true where, as in this case, the money used in extinguishing his lien was that of a minor and was used by his guardian.
R. S. Ryors, Wm. O. Mead, and T. T. Loy for respondent.
(1) The probate court had no jurisdiction or power to make the order of sale under which defendant claims. To confer such jurisdiction a petition must be filed in the probate court showing the debts due to and by the estate, and that there are not sufficient personal assets to pay the debts of such estate. R. S. 1889, secs. 145, 146; Rorer on Judicial Sales [2 Ed.], sec. 292. (2) The probate court made the order of sale on the same day the petition was filed and that same order was renewed from time to time until the sale, without any order of publication ever having been made or published as required by section 147, Revised Statutes, 1889, and the probate court for that reason had no jurisdiction or power to make such order of sale, and it and all subsequent proceedings are void. Ferguson v. Carson, 86 Mo. 673; Teverbaugh v. Hawkins, 82 Mo. 180; Rorer on Judicial Sales [2 Ed.], secs. 301, 303. The administration began in March, 1891, the order for the sale was made at the May term of the probate court following, which was not a term of said court at which any annual settlement of the administrator was due, nor was any settlement made at that time so as to bring the order of sale under the provisions of Revised Statutes, 1889, section 169. Pattee v. Mowry, 59 Mo. 161. The probate court could not acquire jurisdiction to make the order of sale it did make except by its own process, which was an order of publication duly published. To give jurisdiction is the object of process. (3) The order of publication or other process by which the court acquired jurisdiction, if at all, is as much a part of the record as the order of sale itself, and if it affirmatively appears that no publication, as here, was made, then in that event the whole proceeding is void. Hewitt v. Weatherby, 57 Mo. 276; Brown v. Langlois, 70 Mo. 226. (4) The probate court attempted to order a sale of the equity of redemption of John McNamara, deceased, in pursuance of a supposed power conferred by Revised Statutes, 1889, sections 142 and 143, but the power did not exist in that court, but is excluded by the terms of section 142, which provides that such order may be made if the deceased "shall not have devised the same or provided for its redemption." The lands in question here were devised to plaintiff. (5) The court reached the only conclusions that could have been arrived at under the facts proved. (6) The procuring of the order of sale, the sale, purchase by Quinn, the conveyance by him to defendant, the entry of satisfaction on the margin of the record of the deeds of trust given by the deceased, were participated in by the administrator and his brother, the defendant, and Quinn, with the common design to appropriate the land and take it away from the plaintiff. There was no overreaching by anyone in the matter, nor was there any mistake of fact. If there was any mistake at all it was one of law, and for such mistake neither courts of law nor equity afford any relief. Price v. Estill, 87 Mo. 378; Norton v. Highleyman, 88 Mo. 621. (7) If the court in his finding of fact did incidentally find that the Dudgeon deed of trust made by Quinn should not be paid to defendant, neither he nor those under whom he claims ever having paid any part of it, we can not see that it affords him any just grounds of complaint. (8) There was no petition, order of sale, or sale of the southwest quarter of the northwest quarter of section 17, township 45, range 7, hence, the defendant under the ruling of this court in the case of Melton v. Fitch, 125 Mo. 281, can have no claim to it.
This is an action of ejectment in statutory form for the north half of the northwest quarter of section 17, and east half of the northeast quarter, and the northwest quarter of the northeast quarter of section 18, all in township 45, range 7 west of the fifth principal meridian, lying in Osage county, being two hundred and forty acres of land.
John McNamara died seized of said lands, March 20, 1891. Both parties claim title through him. By his last will and testament, duly probated after his death, John McNamara devised all these lands and all his personal estate to the plaintiff J. W. Hutchinson, and this constitutes his claim to the land. Defendant admits that John McNamara owned the land and that he devised the same to plaintiff, but avers that at the time of his death said McNamara was indebted to the amount of $ 985 for which he had given two promissory notes, one for $ 600 and the other for $ 385, the payment of which he had secured by two separate deeds of trust on all of said lands; that William Shelley was at the March term, 1891, duly appointed administrator cum testamento of said estate by the probate court of Osage county; that the personal estate of said McNamara was wholly insufficient to pay his funeral expenses and debts, and thereupon at the May term, 1891, said administrator presented to the said probate court his petition setting forth that the personal estate was wholly insufficient to pay the debts of said estate and prayed for an order to sell all of said lands for that purpose.
He then avers that said court accordingly at said May term, 1891 made its order of record directing...
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