Jackson v. Johnson

• Decision Date: 24 December 1912
• Citation: 248 Mo. 680,154 S.W. 759
• Parties: JACKSON v. JOHNSON et al.
• Court: Missouri Supreme Court

154 S.W. 759

248 Mo. 680

JACKSON v. JOHNSON et al.

Supreme Court of Missouri. Division No. 1.

December 24, 1912.

On Motion for Rehearing, March 15, 1913.

1. QUIETING TITLE (§ 34) — PETITION — SUFFICIENCY.

A petition under Laws 1897, p. 74 (Rev. St. 1899, § 650), to quiet title, otherwise good, is not rendered insufficient by the statement of legal conclusions and a prayer for relief not appropriate under that act.

2. PLEADING (§ 406) — PETITION — DEFECTS — WAIVER.

Under Rev. St. 1909, § 1800, which authorizes demurrer to a petition on specified grounds, and which provides that an objection not taken by demurrer or answer shall be deemed to have been waived, joinder of issue on the merits waives all defects in the petition excepting objections that it does not state a cause of action and that the court has no jurisdiction.

3. EXECUTORS AND ADMINISTRATORS (§ 337) — ADMINISTRATION SALES — VALIDITY — WANT OF NOTICE.

An order for an administrator's sale to pay debts of decedent is void if personal notice was not served on resident heirs as required by Rev. St. 1909, § 152; notice merely by publication being insufficient.

4. EXECUTORS AND ADMINISTRATORS (§ 397) — ADMINISTRATION SALES — VALIDITY.

A deed of an administrator de bonis non under Rev. St. 1899, § 167, based on a sale made by the original administrator, is void, where it does not recite a petition for such deed as provided for by such section, and where it is based on a report of sale filed by the administrator de bonis non, and not by the administrator as provided for by section 167.

5. GUARDIAN AND WARD (§ 111) — GUARDIAN'S SALE — VALIDITY.

A guardian's deed is void if based on a sale not authorized by law and not approved by the court; the sale being intended solely to divest the wards of their title.

6. MORTGAGES (§ 1) — NATURE.

A mortgage, though in form a conveyance of the legal estate, is in substance only a pledge of the land for the mortgage debt.

7. BILLS AND NOTES (§ 170) — INDORSEMENT FOR COLLECTION — EFFECT.

Indorsement of a note for collection limits its transfer to that purpose and destroys its negotiability.

8. MORTGAGES (§ 372) — SALES — VALIDITY.

A sale under a deed of trust is void, where it appears that the note secured was paid and was never owned by the person recited as owner in the trustee's deed.

Appeal from Circuit Court, New Madrid County; Henry C. Riley, Judge.

Action by John W. Jackson against Horrell Johnson and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

One Lot Fletcher, who is the common source of title of the parties to this suit, was, up to the time of his death, a resident of New Madrid county. In December, 1891, he purchased from W. R. Beardsley, a resident of Morley, Scott county, Mo., for the sum of $1,000, the 400 acres of land which is the subject of this suit, together with another tract of 48 acres. Of the purchase money he paid in cash $300, and made two promissory notes to Beardsley, each for the sum of $350, with interest at the rate of 6 per cent. per annum, and secured their payment by a deed of trust on the land. Both were dated December 28, 1891, and one of them was due in 12 months and the other in 24 months. The land was timbered, and Mr. Fletcher cut and hauled out something like two barge loads of the timber, which lay on the bank of the river at the time of his death. This amounted to somewhere in the neighborhood of 200,000 feet. He died February 6, 1892, leaving a widow, Mrs. Martha Fletcher, who afterward married John Cobb, and the following named children, as his only heirs: Ruth Fletcher, born in 1881; Ida Fletcher, born in 1882; Pearl Fletcher, born in 1883; Mattie Fletcher, born in 1884; Hattie Fletcher, born in 1886; and William Leslie Fletcher, born in 1890. Before this suit was instituted Ruth married one Jean Flowers, Ida married John Keene, Mattie married James Keene, Pearl married Osner Cobb, and died in 1900, leaving no surviving child, Hattie married Ed. Ward, and Leslie was single at the time of the trial. Upon the death of Lot Fletcher his brother Harvey Fletcher was appointed by the probate court for New Madrid county the administrator of his estate, which he thereupon took into his possession and proceeded to administer. The record shows that in addition to the land involved in this suit the administrator inventoried 204½ acres of other lands in New Madrid county. He sold the corn crop of 1891 for $1,268.35, and sold ash and cottonwood timber which had been cut by intestate to the amount of $1,648.21, and had other personal property appraised at $1,030. The administrator also sold to one Jesse W. Spies, a lumber and mill operator in Cairo, Ill., the standing timber on the 448 acres. The consideration of this sale is one of the matters in dispute.

The records of the New Madrid probate court contain the following entry as of the February term, 1894: "A. O. Cook, one of the creditors of said estate, presents a petition for the sale of the real estate of said Lot Fletcher to pay the debts of said Fletcher, and the court finding that the personal property heretofore sold is entirely insufficient for the payment of the debts allowed against said estate, it is now ordered that the said administrator proceed at once to sell the real estate as by law directed." This is the only mention in the record of Mr. Cook or his petition. At the same term an order of publication issued, reciting that it was made upon the petition of Harvey Fletcher, administrator of the estate of Lot Fletcher, deceased, for an order of sale of certain real estate described in it, including that here in suit, and was returned with proof of publication on February 17th and 24th and March 3d and 10th and 17th. At the May term, 1894, an order of sale was made upon this notice. The record contains no direction for any other notice than this, nor do the files contain any such notice. The heirs of Lot Fletcher whose interests are involved in this suit testified that no personal notice was given. On February 11, 1895, the probate court ordered L. Newbauer, public administrator, to take charge of the estate of Lot Fletcher as administrator de bonis non. On March 15th, Newbauer presented "his settlement as administrator of the estate of Harvey Fletcher, deceased, former administrator of the estate of said Lot Fletcher, deceased, which is examined and approved."

On March 16th is the following entry: "In the Matter of Estate of Lot Fletcher, Deceased; L. Newbauer, Administrator De Bonis Non. Report of Sale of Real Estate: Now comes L. Newbauer, administrator de bonis non of the estate of Lot Fletcher, deceased, and files his report of sale of the real estate made to Harvey Fletcher, former administrator of the estate of said Lot Fletcher, deceased, said Harvey Fletcher having died after making sale of the real estate described in order by this court, all of which is approved and confirmed, and the said administrator de bonis non is ordered to execute, acknowledge, and deliver to W. W. Pinnell a deed in due form of law, conveying to the said W. W. Pinnell all the right, title and interest which the deceased had in same at the time of his death in the following described real estate: The southwest quarter of section 16 in township 22, north of range 15 east, containing 160 acres; and also to execute, acknowledge to C. L. Mitchell a deed in due form of law, conveying to the said C. L. Mitchell all the right, title and interest which the deceased had in the same at the time of his death in the following described real estate, to wit: The east half of southwest quarter and east half of section 10 in township 22, range 15 east, containing 400 acres; it having been satisfactorily proven to the court that said sale was legally and fairly conducted pursuant to the order of the court, and in accordance with the statute." The report of sale referred to, after describing the land and making some formal statements not important here, states, in substance, that Harvey Fletcher, as administrator, sold the land on November 13, 1894, after having had the same appraised by C. L. Mitchell, W. W. Pinnell, and Charles Green, three disinterested householders, and given four weeks' notice by advertising in a newspaper published in the county, and that at the sale William W. Pinnell purchased the 160 acres not included in this suit for the sum of $50, and C. L. Mitchell was the highest bidder for the 400 acres included in this suit for the sum of $5, subject to the lien of a deed of trust for $700, to William Beardsley, and that the purchasers had complied with the terms of their purchases respectively. This report was verified by the affidavit of Newbauer, stating that he was not interested in the property sold except as stated in said report. The report also stated that Harvey Fletcher died on the 1st day of December, 1904. The order of sale recited in this report states that notice of the application had been published in the Weekly Record, etc., but mentions no personal notice to the heirs.

On April 9, 1895, the following entry was made in the records of the New Madrid probate court in vacation: "It appearing to the court that Ida B. Fletcher, Ivy P. Fletcher, Mattie L. Fletcher, Hattie M. Fletcher and William L. Fletcher, minor heirs of Lot Fletcher, deceased, have no curator of their respective estates derived from their father, it is ordered that Louis Newbauer be and is hereby appointed curator, who is ordered to take charge of said minors at once." At the May term there is an entry stating, in substance, that the curator filed an inventory showing that he had no personal estate in his hands belonging to the minors, and asking for a sale of their real estate, and it was thereupon "ordered by the court that said curator be and is hereby authorized and empowered to sell the real estate at either public or private sale, first having the same appraised according to law, for not less than...