Mabary v. Dollarhide

• Decision Date: 20 May 1889
• Parties: MABARY et al. v. DOLLARHIDE et al.
• Court: Missouri Supreme Court

11 S.W. 611

98 Mo. 198

MABARY et al. v. DOLLARHIDE et al.

Supreme Court of Missouri.

May 20, 1889.

EXECUTORS AND ADMINISTRATORS — ADVERSE POSSESSION — EJECTMENT — VENDOR AND VENDEE.

1. An administrator who, before the enactment of the Missouri statutes relating to the purchase of land by guardians, administrators, etc., purchased land at execution sale under a judgment recovered by him in favor of the estate, and took a sheriff's deed to himself as administrator, took title as an individual, and held it in trust for the heirs and creditors of the estate, especially when he inventoried, and procured an order of sale of, and sold, the land as land of the estate.

2. The purchaser of land at administrator's sale brought ejectment against those claiming adversely to the estate and himself, and recovered. Pending the ejectment the heirs sued to set aside the administrator's sale, and a decree accordingly was rendered and affirmed in the supreme court; but, before affirmance, an appeal taken in the ejectment by defendants therein was dismissed at their request. Held, that the decree and affirmance in the suit by the heirs vested in them all the rights of the purchaser, and that any act of defendants in the ejectment available to plaintiff therein to defeat their title by adverse possession was available to the heirs.

3. The possession of the vendee under a contract which is not performed is, in effect, the possession of the vendor, and is available to the vendor in making out the statutory period of adverse possession.

4. A judgment for plaintiff in ejectment, without possession taken under it, or some act making defendant's possession subordinate to plaintiff's title, will not stop the running of the statute of limitations, and the mere fact that defendant dismisses his appeal from the judgment does not amount to an abandonment of all claims adverse to the land.

5. But actual dispossession of defendant is not necessary to bar the running of the statute, and an agreement that defendant delivers possession to plaintiff, or consent to abide the judgment for possession, is equivalent to dispossession, and thereupon defendant becomes the tenant of plaintiff, and his possession is no longer adverse.

Appeal from circuit court, Hickory county; W. I. WALLACE, Judge.

Ejectment by W. J. Mabary and others against William Dollarhide and others. Plaintiffs appeal.

A. S. Smith, for appellants. Ross & Rechow, for respondents.

BLACK, J.

This is an action of ejectment for 120 acres of land in Hickory county. The suit was commenced in April, 1883, and the plaintiffs and appellants are the heirs of John Mabary, deceased. The title is conceded to have been in A. H. Foster. James R. Wilson, as administrator of the Mabary estate, sued Foster for a debt due the estate, and caused the land to be attached in June, 1864. It was sold under a judgment recovered in that suit, and Wilson became the purchaser, taking the deed to himself as administrator. The sale was made in September, 1865, and the deed is dated August, 1867. Wilson by a quitclaim deed conveyed to these plaintiffs in March, 1866. Wilson inventoried the property thus purchased as the property of the estate, and, pursuant to an order of the probate court made in October, 1868, sold the land for the purpose of paying the debts of the estate, and McClurg became the purchaser, and received an administrator's deed dated in August, 1869. McClurg purchased the same land in August, 1868, at a sheriff's sale made under a judgment in another attachment suit brought by Wilson, as administrator of the Mabary estate, against Foster. Wilson and his wife made a deed of the land to McClurg in August, 1867. The defendants in this suit put in evidence a sheriff's deed to the defendant Dollarhide, dated in 1864, and some tax-deeds dated in 1866 and 1869. The sheriff's deed purports to convey the interest and title of Foster, but it and the tax-deeds were excluded by the court. The sheriff's deed seems to be the same deed which was held to be of no validity in McClurg v. Dollarhide, 51 Mo. 347. This and the tax-deeds were then read in evidence by the defendants for the sole purpose of showing color of title. The evidence shows that Dollarhide took possession in 1865 or 1866, and that he went into possession under his deed, dated in 1864. Bozarth took possession under Dollarhide, and after him the land was occupied by Rains, to whom Dollarhide made a title-bond, dated in 1868. This title-bond, it may be stated, included other land, and was made to Rains and Fisher. Rains remained in possession until 1881, but never completed the payment of the purchase money, and hence never got a deed from Dollarhide. On the 6th November, 1873, McClurg brought a suit in ejectment against Rains to recover the land to which suit Dollarhide was made a defendant on his own motion. McClurg obtained a judgment for the possession in November, 1875, and Rains and Dollarhide appealed to this court, but the appeal was dismissed at their request in 1878. It seems a writ for the possession of the land was never issued on this judgment. While this suit of ejectment of McClurg against Rains and Dollarhide was pending, the plaintiffs in this present suit commenced a suit in equity against McClurg to set aside the several deeds to him on the ground that they had been procured by a fraudulent combination with Wilson, the administrator of the Mabary estate. The suit in equity was commenced in December, 1873, and in November, 1877, the circuit court made a decree setting aside the deeds to McClurg, and vesting the title acquired by him in the plaintiffs in that suit, who are the plaintiffs in this suit. That decree was affirmed by this court at our October term, 1881. See 74 Mo. 575.

1. Going back now to the beginning of the plaintiffs' title it is suggested that Wilson, as the administrator of the estate of John Mabary, had no power to, and could not, become the purchaser of real estate. To this we answer the title passed to him as an individual, and he held it in trust for the heirs and creditors of the estate. Indeed he inventoried the land as the land of the estate, procured an order for the sale thereof, and sold it as the property of the estate. The court below held, and correctly held, that the sheriff's deed to Wilson, as the administrator...