Johnson v. Adams

• Decision Date: 21 June 1928
• Docket Number: No. 26385.,26385.
• Citation: 7 S.W.2d 1010
• Parties: JOHNSON et al. v. ADAMS.
• Court: Missouri Supreme Court

7 S.W.2d 1010

JOHNSON et al. v. ADAMS.

No. 26385.

Supreme Court of Missouri. Division No. 2.

June 21, 1928.

Appeal from Circuit Court, Johnson County; Ewing Cockrell, Judge.

Ejectment action by Bettie Johnson and others against George W. Adams. Judgment for plaintiffs, and defendant appeals. Affirmed, on condition of remittitur.

M. D. Aber, of Warrensburg, for appellant.

J. M. Crutchfield, of Warrensburg, E. C. Littlefield, of Knobnoster, and T. S. Mosby, of Jefferson City, for respondents.

BLAIR, J.

Suit in ejectment in the circuit court of Johnson county, wherein plaintiffs claimed four-ninths interest in 160 acres of land. Defendant appealed from a judgment of the trial court awarding plaintiffs possession and damages in the sum of $107.90.

The land in suit was purchased by Benjamin Franklin, the common source of title, in 1877, and was occupied by him and his family until his death, November 1, 1897. He left no will. His widow, Elizabeth Franklin, and numerous children, including the plaintiffs, survived him. Benjamin Franklin was married twice and had children by both wives. One of the four plaintiffs was a child of his first marriage. Elizabeth Franklin died December 24, 1923. She remained the widow of Benjamin Franklin until her death. Eight children of Benjamin Franklin and the children of a deceased child then constituted his heirs. Only four of them joined in the suit. The Franklin family were negroes. Henry Adams, a white man, was appointed administrator. On May 6, 1899, Henry Adams, as administrator of the estate of Benjamin Franklin, deceased, secured an order from the probate court of Johnson county to sell the land in suit, in order to pay the debts of Benjamin Franklin, deceased. Under said sale the land was sold to the widow of deceased, Elizabeth Franklin, subject to her existing homestead and dower rights. The report of sale showed that she paid $450 for the 160 acres of land and $15 for 3 acres adjacent thereto but not involved in this suit. On May 8, 1900, Elizabeth Franklin sold 40 acres of the land to defendant for the stated consideration of $400. She undertook to execute a warranty deed therefor. In March, 1914, Elizabeth Franklin executed another warranty deed purporting to convey 123 acres of land to defendant for the stated consideration of $4,500. One hundred twenty acres of this land was the remainder of the 160-acre tract of which Benjamin Franklin died seized. Defendant took possession of the land under his deed and improved the same. There was proof tending to show the value of such improvements.

The administrator's sale of the homestead for the debts of Benjamin Franklin, under the order made by the probate court, was wholly unauthorized, was in violation of law, and conveyed no title whatever to defendant as against the heirs of Benjamin Franklin. Laws of 1895, p. 186, § 2, amending Rev. St. 1889, § 5439 (now substantially incorporated in the 1919 statutes as part of section 5857), was then in force, and reads as follows:

"If any such housekeeper or head of a family shall die, leaving a widow or any minor children, his homestead to the value aforesaid shall pass to and vest in such widow or children, or if there be both, to such widow and children, and shall continue for their benefit without being subject to the payment of the debts of the deceased, unless legally charged thereon in his lifetime, until the youngest child shall attain its legal majority, and until the death of such widow; that is to say, the children shall have the joint right of occupation with the widow until they shall arrive respectively at their majority, and the widow shall have the right to occupy such homestead during her life or widowhood, and upon her death or remarriage it shall pass to the heirs of the husband; and the probate court having jurisdiction of the estate of the deceased housekeeper, or head of a family, shall, when necessary, appoint three commissioners to set out such homestead to the person or persons entitled thereto."

Hence, at the death of Elizabeth Franklin in December, 1923, the surviving heirs of Benjamin Franklin became the owners of the land, notwithstanding the sale attempted to be made to defendant by the administrator of Benjamin Franklin, deceased, under the order of the probate court of Johnson county. As Elizabeth Franklin did not die until December 24, 1923, plaintiffs did not become entitled to the possession of the land until that date. This suit was filed June 23, 1924.

While the answer does not expressly admit that the administrator's deed was void, no contention otherwise is made in this court. The defenses made in the answer were: First, that all the plaintiffs were the children of Elizabeth Franklin (which was not entirely correct), and that plaintiffs are bound by "the operative words of conveyance of grant, bargain, and sell," used by Elizabeth Franklin in her deeds to defendant, and are precluded thereby from asserting title to said lands; second, that plaintiffs are estopped and precluded from asserting title to said lands because they had full knowledge of the negotiations between Elizabeth Franklin and defendant and knew that their mother was undertaking to sell the land to defendant and that she was receiving the full value thereof from defendant and encouraged the conclusion of such negotiations and sale and afterwards received the benefit of the purchase price; third, that by reason of the proceedings in the probate court and the sale to Elizabeth Franklin and subsequent possession by her and the sale by her to defendant, plaintiffs got the benefit of the $450 paid by Elizabeth Franklin and used to pay the debts of their father and that the four plaintiffs should be compelled to repay to defendant their proportionate part of said $450 and taxes paid, amounting to $543.50 and interest, or a total of $753.06, in the event that defendant be not adjudged entitled to the land by limitation; fourth, that defendant, in good faith, believed that he had the fee-simple title to the land, and, acting on such belief, made valuable and lasting improvements thereon in the sum of $2,500, and that if defendant's title be adjudged...