Long v. Joplin Mining & Smelting Co.

• Decision Date: 31 October 1878
• Parties: LONG, Appellant, v. THE JOPLIN MINING & SMELTING COMPANY.
• Court: Missouri Supreme Court

68 Mo. 422

LONG, Appellant,

v.THE JOPLIN MINING & SMELTING COMPANY.

Supreme Court of Missouri.

October Term, 1878.

Appeal from Jasper Circuit Court.--HON. JOSEPH CRAVENS, Judge.

The deed from M. M. James, referred to in the opinion, was dated February 28th, 1874, and was executed in pursuance of an order of court upon him, as acting administrator of Alexander Orchard, to make a deed to the defendant, as assignee of William T. Orchard, under his purchase at the administration sale made by Clisby Robinson, the former administrator, who died in 1861. His successor, M. M. James, was appointed October 3rd, 1873. The final settlement of Clisby Robinson of August 25th, 1858, besides giving a description of the land in dispute, and the name of the purchaser, further stated that the sale of the land was made for $40, through mistake; that the administrator should have been charged with $20 only, as one-half of the so-called forty acres of land belonged to William T. Orchard, who became the purchaser, and had paid $20 only for the one-half. The other facts sufficiently appear in the opinion of the court.

Carter & Clardy with E. T. Farish for appellant.

The proceedings in the probate court were irregular and defective, and the attempted sale by the administrator conveyed no title. These proceedings were defective in the following particulars.

( a) The only evidence that a report of sale was ever made by the administrator, is the record of the county court approving such report, and in this record the real estate attempted to be sold is not described.

( b) The statute requires a deed to be made to the purchaser, and declares that such deed shall convey to him all the right, title and interest which the deceased had to such real estate, at the time of his death. Wohlien v. Speck, 18 Mo. 561; Speck v. Riggin, 40 Mo. 405. No deed having been made, and no effort to make one having been shown, the heirs of Alexander Orchard were not divested of their title. Rorer on Judicial Sales, (1 Ed.) chap. 4, § 134, p. 59.

( c) The subsequent appointment of M. M. James as administrator, was illegal and void, final settlement of the estate having been made some fifteen years before he was appointed, and there being no assets to be administered or debts to be paid. No authority is conferred on the probate court to appoint an administrator de bonis non for the sole purpose of making a deed. Grayson v. Weddle, 63 Mo. 523; Gasque v. Moody 12 Sme. & Mar. 153; Manly v. Kidd, 33 Miss. 141. The deeds to Orchard and to the defendant were, therefore, void.

In the final settlement of Clisby Robinson, as administrator, he recites that he sold but one-half of said land to Wm. T. Orchard, said Orchard being the owner of the other half. Now, if the statement is effectual for any purpose, it is to show that defendant has no title whatever to one-half of the land sued for. The defendant having offered this final settlement or amended report of sale in evidence, is estopped from denying its recitals. Speck v. Riggin, 40 Mo. 405.

The decree of the court divesting plaintiff of title was irregular, illegal and unwarranted. A court of equity never aids the imperfect execution a statutory power. Moreau v. Detchmendy, 18 Mo. 522; Speck v. Wohlien, 22 Mo. 310; Hubbell v. Vaughan, 42 Mo. 138; Moreau v. Branham, 27 Mo. 351; Briyht v. Boyd, 1 Story 478; 1 Story's Eq., (10 Ed.) chap. 4, § 96, p. 95, and chap. 5, § 177, p. 176; Bispham Prin. of Eq., cap. 1, part 2, § 182, p. 188, and § 193, p. 195; Kerr on Fraud and Mistake, 444. The doctrine laid down in the case of Houp v. County of Bates, 61 Mo. 391, does not militate against this position.

G. H. Walser, L. P. Cunningham and Nathan Bray for respondent.

1. We think that the defendant has the legal title to the land; it is conceded that Alexander Orchard died owning the land. It is shown in evidence that on the 29th day of August, 1854, the land was sold at public sale for the payment of the debts of said Orchard's estate; that the sale was duly reported and confirmed on the 28th day of November, 1854, and the purchaser, William T. Orchard, paid the purchase money; that he (William T. Orchard) gave the two deeds of trust introduced in evidence, made in 1855 and 1858, both of which were regularly foreclosed, and that Logan O. Swope bought under the deed of trust given in 1855, and Nathan Bray under the other, and that both said Swope and Bray conveyed to the defendant; and that defendant thus being vested with the right of William T. Orchard acquired by him under the administrator's sale, obtained an administrator's deed to be made to itself as the assignee of said William T. Orchard.

2. The probate court had jurisdiction to order M. M. James, then acting administrator of the estate of Alexander Orchard, to make to the defendant an administrator's deed, the former administrator, Clisby Robinson, having failed to make any deed. The estate was still open; although Clisby Robinson had presented what seemed to be a final settlement, he was not discharged, and the estate was still within the control of the probate court. Bartlett v. Glasscock, 4 Mo. 62; Rorer on Judicial Sales, pp. 144, 145, § 364; Rugle v. Webster, 55 Mo. 246; Shore's Admr. v. Coons, 24 Mo. 553; 1 Wag. Stat., §§ 36, 37, p. 98.

3. By reason of the administrator's sale to William T. Orchard, the payment of the purchase money, the approval of the sale, and the sale under the two deeds of trust given by William T. Orchard, and the conveyances to the defendant by the purchasers thereunder, defendant became possessed of an equity in and to the land, which coupled with its possession and the improvements made on the land, with surely defeat the plaintiff in this action. The equitable title to the land was vested in William T. Orchard by the administrator's sale and that equity was assignable. Bartlett v. Glasscock, 4 Mo. 62; Rorer on Judicial Sales, § 370; McLean v. Martin, 45 Mo. 393; Jones v. Manly, 58 Mo. 559; Shroyer v. Nickell, 55 Mo. 264.

C. W. Thrasher and H. C. Young for respondent.

The equitable title to the lands in controversy, acquired by respondent from Wm. T. Orchard, independent of the deeds made by M. M. James, as administrator of Alexander Orchard, deceased, was a sufficient equitable title in respondent to defeat a recovery by appellant in ejectment. Tyler on Ejectment, 565, 731, 738, 765; Bartlett v. Glasscock, 4 Mo. 62; Castleman v. Relfe, 50 Mo 583; Voorhees v. Bank U. S., 10 Pet. 478, 479, 449; Hayden v. Stewart, 27 Mo. 286; Tibeau v. Tibeau, 19 Mo. 78; Carman v. Johnson, 20 Mo. 108; Harris v. Vinyard, 42 Mo. 568; Willis v. Wazencraft, 22 Cal. 607; Henderson v. Dickey, 50 Mo. 161; Petty v. Malier, 15 B. Mon. 591; Ells v. Pacific R. R. Co., 51 Mo. 200; Harrington v. Fortner, 58 Mo. 468; Collins v. Rogers, 63 Mo. 515; Barker v. Circle, 60 Mo. 258.

SHERWOOD, C. J.

The defendant was successful in the ejectment brought by plaintiff, hence this appeal.

1. DEED, of an administrator de bonis non.

I. An administrator de bonis non cannot be appointed for the sole purpose of making a deed which his predecessor had neglected to make; for this reason, the deed made by M. M. James to defendant was a mere nullity. Grayson v. Weddle, 63 Mo. 523.

2. ______: equitable title of purchaser without deed.

II. But, though the deed of James was inoperative, did not accomplish the purpose which induced his appointment, yet it is by no means clear that plaintiff should have recovered the land sued for. The records of the county court show that, at the November term, 1854, an order was made as follows: “This day comes Clisby Robinson, public administrator of Jasper county, and ex officio administrator of the estate of Alexander Orchard, deceased, and files his report of the sale of real estate belonging to said estate, and also a sale bill of said real estate, which is approved by the court.” A subsequent entry, made February, 1855, showed permission granted by the county court, to the public administrator, to amend his report, and a further entry, made August 25th, 1858, shows the final settlement of the administrator, which contains a description of the land in controversy--forty acres--and the person to whom it had been sold. William T. Orchard, under whom defendant claims by means of deeds of trust, executed by Wm. T. Orchard, in the year 1855, to Jno. R. Chenault and to Wm. M. Chenault, in August, 1858, and sales under such deeds in 1867 and 1874, at which sales those under whom defendant claims, purchased the property in suit. Alexander Orchard, mentioned in the county court proceedings, died in 1853, and he was the patentee of the land, the patent therefor having issued in 1852. Plaintiff claims under a quitclaim deed from his heirs, executed in 1872. The land in controversy has had no occupant or improvement from 1853 up to 1870, in which former year a small hut erected by Alexander Orchard, assisted, perhaps, by Jeremiah and Wm. T. Orchard, was destroyed or removed. In 1870, however, lead, in large quantities, having been discovered on the tract in question, it has become very valuable, and together with adjacent tracts, has become the seat of a populous town called “Joplin City,” an addition to that town covering a portion of the land sued for, having been laid out in 1872, anterior to plaintiff's purchase from the heirs. We entertain no doubt that Wm. T. Orchard, by his purchase at the administration sale, acquired at least an equitable or beneficial interest in the premises sold; and although those premises are not properly designated in the order approving the report of sale, yet the final settlement shows the description of the land and to whom sold; and this is amply sufficient. That William T. Orchard acquired, by his purchase of and payment for the land, an equitable interest therein, is shown by our own adjudicated cases. Bartlett v. Glasscock, 4 Mo. 62; Castleman v. Relfe, 50 Mo. 583; Grayson v. Weddle, 63 Mo. 523. We do not understand the case o...