Linville v. Ripley

• Decision Date: 04 January 1941
• Docket Number: 36804
• Citation: 146 S.W.2d 581,347 Mo. 95
• Parties: William S. Linville v. Alice Ripley, Ralph Ripley, Fred June, and Emmett Bartram, Administrator of the Estate of John A. Ripley, Appellants
• Court: Missouri Supreme Court

146 S.W.2d 581

347 Mo. 95

William S. Linville v. Alice Ripley, Ralph Ripley, Fred June, and Emmett Bartram, Administrator of the Estate of John A. Ripley, Appellants

No. 36804

Supreme Court of Missouri

January 4, 1941

Appeal from Nodaway Circuit Court; Hon. Ellis Beavers Judge.

Reversed and remanded (with directions).

Meyer & Imbersteg and Horace Merritt for appellants.

(1) The original plaintiff, Garnett, was not the real party in interest and the court should have sustained defendants' plea in abatement. Sec. 698, R. S. 1929; Dallas v McNutt, 249 S.W. 35, 297 Mo. 535; Burkey v Burkey, 175 S.W. 623; Coles v. Bedford, 232 S.W. 728, 289 Mo. 97; Coulson v. Coulson, 79 S.W. 473, 180 Mo. 709; Dickson v. Maddox, 48 S.W.2d 873. (2) The order to sell land in the estate of John A. Ripley, deceased, made by the Probate Court of Nodaway County, Missouri, was illegal, invalid and void because made on the petition by the Bank of Skidmore as a creditor, at which time its claim against said estate was being contested, and was later held by the Kansas City Court of Appeals that said creditor had no legal or valid claim against said estate, therefore, losing its identity as a creditor and the application not being made by a proper party the probate court had no jurisdiction. Secs. 142, 146, R. S. 1929; Stark v. Kirchgraber, 85 S.W. 868, 186 Mo. 633; Smith v. Black, 132 S.W. 1129, 231 Mo. 681. The above case last cited was overruled merely as to its holding that a sale for less than three-fourths value was merely erroneous, but not overruling that the judgment was void for want of proper parties. Aetna Ins. Co. v. O'Malley, 118 S.W.2d 14; United Cemeteries v. Strother, 119 S.W.2d 765; Burnes v. Ames Realty Co., 31 S.W.2d 274; Dusenberg v. Rudolph, 30 S.W.2d 14; United Cemeteries v. Strother, 119 S.W.2d 765; Burnes v. Ames Realty Co., 31 S.W.2d 274; Dusenberg v. Rudolph, 30 S.W.2d 96; Ecton v. Tomlinson, 212 S.W. 865, 278 Mo. 282. (3) The original order to sell was made by the probate court in 1933 ordering a sale of the entire eighty acres, subject to dower and homestead on petition filed by one not a creditor, was renewed on application of administrator de bonis non in 1938, said order was not continued from term to term and no other notice except original notice and original publication was served on parties interested and, therefore, sale wholly void. Rogers v. Johnson, 28 S.W. 635, 125 Mo. 202; Dildine v. Dehart, 239 S.W. 112, 293 Mo. 393; Stark v. Kirchgraber, 85 S.W. 868, 186 Mo. 633; Norton v. Reed, 161 S.W. 842, 253 Mo. 236. (4) The widow's dower and homestead was set apart on petition filed by the Bank of Skidmore, not a creditor, not any other person or party designated as qualified or authorized to file suit to have dower and homestead set apart. Sec. 451, R. S. 1929; Stark v. Kirchgraber, 85 S.W. 868, 186 Mo. 633; Smith v. Black, 132 S.W. 1129, 231 Mo. 681. (5) The order of sale made by the probate court was void for the reason the records of the probate court do not show affirmatively that a notice was served personally on the resident heirs at least ten days before order of sale was made and that all the heirs of the deceased were served. Its finding as to the manner of service is not aided or supplemented by any process return or other papers in its files. Jackson v. Johnson, 154 S.W. 759, 248 Mo. 680; Deslodge v. Tucker, 94 S.W. 283, 196 Mo. 587. (6) The variation in the description of the land as described in the petition to sell and that as described in the order to sell makes the deed absolutely void. Jackson v. Johnson, 154 S.W. 759, 248 Mo. 680; Roberts v. Tomason, 74 S.W. 624, 174 Mo. 378; Milton v. Fitch, 28 S.W. 612, 125 Mo. 281.

D. D. Reeves and A. F. Harvey for respondent.

(1) Appellants, under points and authorities No. 1, raise the question that the original plaintiff Garnett was not the real party in interest. There can be no question about Garnett taking the legal title to the land by deed from the administrator Bertram, that it was paid for wholly by the money of plaintiff Linville, that this was done by arrangement made between Garnett and Linville. Nothing more was necessary to enable Linville to be substituted as plaintiff and prosecute the suit. Mississippi County v. Byrd, 4 S.W.2d 810; Syz v. Milk Wagon Driver's Union, 24 S.W.2d 1080; Turner v. Noble, 249 S.W. 104; Craig v. Met. Life Ins. Co., 296 S.W. 211; Sexton v. Anderson Electric Car Co., 234 S.W. 358; Eulinberg v. Quick Payment Old Line Life Ins. Co., 261 S.W. 725; Cytron v. Transit Co., 205 Mo. 701; Trust Co. v. Tindle, 272 Mo. 694; Wilson & Co. v. Hartford Fire Ins. Co., 254 S.W. 278; Wellman's Admr. v. Dismukes, 42 Mo. 101. (2) The administrator's deed is prima facie good. Sec. 168, R. S. 1929; Hughes v. McDivitt, 102 Mo. 77; Bray v. Adams, 114 Mo. 486; Higbee v. Bank, 244 Mo. 411. (3) A judgment of the probate court on matters within its jurisdiction is as conclusive and impervious to collateral attack as a court of general jurisdiction. First when a court having jurisdiction of the class of actions like the one before it, and of the persons interested, must determine whether it has jurisdiction by the ascertainment of the facts in pais, its determination is conclusive. If, in the absence of silence of the record as to any fact necessary to give jurisdiction, such court retains it, the finding of jurisdictional facts is presumed. In such case the judgment cannot be attacked collaterally by showing that the court erroneously found the facts which would give it jurisdiction. McIntyre v. St. L. & S. F. Ry. Co., 227 S.W. 1050; State ex rel. Fidelity & Deposit Co., 298 S.W. 88; State ex rel. v. Mills, 231 Mo. 501; Macey v. Stark, 116 Mo. 481; National Surety Co. v. Casner, 253 S.W. 1061; Wright v. Hetherlin, 209 S.W. 871; Thompson v. Pinnell, 199 S.W. 1013; Robbins v. Boulware, 190 Mo. 51; Desloge v. Tucker, 196 Mo. 601; Bingham v. Kollman, 256 Mo. 589; Cox v. Boyce, 152 Mo. 576. (4) This is a suit to quiet title and determine interest, which is a collateral attack on the judgment theretofore rendered in the probate court. Baker v. Lamar, 140 S.W.2d 31. (5) The publication of the notice to sell real estate as well as notice to the heirs is sufficient. Fleming v. Tatum, 232 Mo. 690; Robbins v. Boulware, 190 Mo. 49; Connors v. St. Joseph, 237 Mo. 620; Jones v. Peterson, 72 S.W.2d 76. (6) The revival of the order to sell the real estate, or any or additional notices thereof, were not required in the probate court. Hicks v. Watson, 258 Mo. 425; Brown v. Marshall, 241 Mo. 707. (7) The former administratrix, Alice Ripley, purchased the land in question from Emmett Bartram, the administrator, and report of sale made for $ 1600, later raised to $ 1800. The sale was not approved at that price and the land was thereafter purchased by Garnett. Alice Ripley is thereby estopped to claim an invalid sale when sold to Garnett, and she now claims the land. Emmett Bartram, the present administrator, has the money and no one has offered to refund. Schneider v. Schneider, 224 S.W. 1; Engelhardt v. Gravens, 281 S.W. 719; Rice v. Bunce, 49 Mo. 231; Slagel, Admr., v. Murdock, 65 Mo. 522; Cadematori v. Gauger, 160 Mo. 352; Henry v. McKerlie, 78 Mo. 416; Lange v. Insurance Co., 254 Mo. 488; Spence v. Renfro, 179 Mo. 417. (8) Purchaser is entitled to either the land or refund of the purchase money on a sale through the probate court. Joseph v. Belcher, 74 S.W.2d 483; Snider v. Coleman, 72 Mo. 568; Schafer v. Causey, 76 Mo. 365; Evans v. Snyder, 64 Mo. 516; Valle's Heirs v. Fleming's Heirs, 29 Mo. 152; Chilton v. Harris, 179 Mo.App. 272; Shanklin v. Ward, 236 S.W. 69; Cunningham v. Anderson, 107 Mo. 371; Jones v. Smith, 186 S.W. 1090.

OPINION

Douglas, J.

This is an action to quiet title to land in Nodaway County. To recount the facts which have given life to this controversy will serve as an epilogue, perhaps, to extended and prolonged litigation which has reached the Kansas City Court of Appeals on five different occasions in its tedious journey through the courts. That court has promulgated opinions in three of the cases. We refer to them for a history of this litigation. [See Bank of Skidmore v. Ripley (Mo. App.), 84 S.W.2d 185; State ex rel. Bank of Skidmore v. Roberts, 232 Mo.App. 1220, 116 S.W.2d 166; Bank of Skidmore v. Bartram, 142 S.W.2d 657.]

As the background of this case we find in 1931 a suit was instituted by the Bank of Skidmore of which Linville, the plaintiff in this case, is cashier against two defendants, Marion F Ripley and John A. Ripley, on a promissory note for $ 1100. Neither defendant appeared and judgment was rendered by default. Marion F. Ripley is not concerned here. Less than a month later John A. Ripley died. His widow, Alice Ripley, the main appellant here, was appointed administratrix of his estate. The bank then filed its demand against the estate of John A. Ripley. Its demand was based not upon the note but solely upon the default judgment. The administratrix attempted to stay the proceedings for the allowance of the demand pending her action in the appellate court to have the default judgment against her intestate set aside. The probate court refused her request and the demand was allowed. The bank, as a creditor of the estate because of its allowed claim, petitioned for the sale of the real estate belonging to the decedent's estate in order to collect its claim. The court sustained the bank's application and entered an order to sell the land. The sale was not immediately held but was postponed from time to time and at intervals the order of sale, based on the same original petition of the bank, was renewed. In the meantime the default judgment against the deceased Ripley was set aside by the Kansas City Court of Appeals and held void ab init...