James v. Dixon

• Decision Date: 31 October 1855
• Citation: 21 Mo. 538
• Court: Missouri Supreme Court
• Parties: JAMES & JEWETT, Appellants, v. DIXON, Respondent.

21 Mo. 538

JAMES & JEWETT, Appellants,

v.DIXON, Respondent.

Supreme Court of Missouri.

October Term, 1855.

1. Where an administrator of a deceased partner, upon the neglect or refusal of the surviving partner to give the bond required by the 50th and 51st sections of the 1st article of the administration act (see R. C. 1845, p. 70), gives bond under the 54th section of said article for the due administration of the partnership effects: held, that such bond is valid, although it does not appear to have been approved by the county court, and the administrator will be entitled to take possession of the entire partnership effects under sec. 53 of the said article. There is nothing in the statute which makes the approval of the bond a prerequisite to the vesting of the property in the administrator.

2. A notice given by the administrator of the deceased partner to the surviving partner, to the effect that, unless such surviving partner gives the bond required by the 50th and 51st sections of the 1st article of the administration act, (R. C. 1845, p. 70,) he, the administrator, will move the county court for an order to take possession of the partnership effects, is a sufficient citation within the 53d section of said article.

3. The omission by an administrator to give three weeks' notice of a sae of personalty, will not invalidate the title of a purchaser.

Appeal from Jefferson Circuit Court.

This was an action brought to recover possession of certain leasehold property, alleged in the petition to have been formerly held by the defendant Dixon, in partnership with one Skeel, deceased. Plaintiffs also claimed damages for the detention of said property. The plaintiffs claimed the entire leasehold property, as purchasers at an administrator sale by one Foxton, as administrator of the said Skeel. The said property was taken possession of by the said Foxton, as the partnership effects of the said Skeel & Dixon, and the sale was made under the 53d section of the 1st article of the administration act. (See R. C. 1845, p. 71.) It appeared in evidence that the county court ordered the said Foxton to give bond “as administrator of the partnership effects; yet, it did not appear that the bond given by him, under the 54th section of the said 1st article, was approved by the county court. The only citation to the defendant under the 53d section of the said 1st article was a notice, in the name of the administrator, to the effect that, unless he, Dixon, should give bond, as required by the 50th and 51st sections of the article above referred to, he the said Foxton would move the county court for an order, directing him, the said Foxton, as administrator of the said Skeel, to take charge of and administer the property of the said firm of Skeel & Dixon. The notice was duly served upon defendant. In the inventory made by the said administrator, Foxton, this property was inventoried as a lease to the said Skeel and the said Dixon; it was not stated to be partnership property. There was only a two weeks' notice or advertisement of the sale. There was no special order of the county court for the sale of this leasehold interest. All evidence in regard to the sale was excluded by the court, on the ground that the...