Macey v. Stark

• Decision Date: 25 March 1893
• Citation: 116 Mo. 481,21 S.W. 1088
• Parties: MACEY et al. v. STARK.
• Court: Missouri Supreme Court

21 S.W. 1088

116 Mo. 481

MACEY et al. v. STARK.

Supreme Court of Missouri, Division No. 1.

March 25, 1893.

EJECTMENT — PROBATE PROCEEDINGS — COLLATERAL ATTACK — ADMINISTRATOR'S DEEDS.

1. In ejectment, defendant, under a general denial, may prove proceedings of the probate court, resulting in an administrator's sale at which he became the purchaser.

2. In ejectment, where a transcript of all the proceedings relative to the settlement of an estate in the probate court have been preserved in the record by bill of exceptions, the supreme court is at liberty to consider it, and its rejection by the trial court is no ground for reversal.

3. The orders and judgments of probate courts concerning matters over which they have jurisdiction are no more open to collateral attack than are the orders and judgments of other courts of general jurisdiction, and must have accorded to them the same intendments and favorable presumptions that are accorded to the orders and judgments of the circuit courts.

4. Where the records of a probate court show a full settlement of an administrator, made "upon his resignation," the presumption is that he gave the eight-weeks notice of his intention to resign required by Rev. St. 1845, p. 69, § 40, and that the court had power to order the estate into the hands of the public administrator.

5. The appointment of an administrator de bonis non during the vacation of the court is not subject to collateral attack on the ground that the probate court did not, at its next term, enter of record the confirmation or rejection of such letters, as required by Rev. St. 1845, p. 62, § 2, when the court did, at its next term, approve the administrator's bond given in vacation, and he subsequently manages the estate for a long period of years under numerous orders of the court.

6. Rev. St. 1845, p. 109, § 10, which provides that if at any time letters are regularly granted to any other person, the public administrator shall turn over the estate to the regularly appointed administrator, does not prevent the public administrator, having charge of an estate, from being appointed administrator in his private capacity; and, after he has been so appointed, and has duly qualified as such, he will hold the estate as a private, and not as a public, administrator.

7. The sale of a decedent's land for the payment of debts is not void because the order to show cause, and the notice given by publication pursuant thereto, are entitled "In the matter of the estate of W. M. Macey, deceased," instead of "William M. Macey," where it appears that the estate was as well known by the one designation as the other, and that no interested party was misled thereby.

8. A delay of 11 years after decedent's death before applying for an order to sell his land to pay his debts does not render the sale void so as to subject it to collateral attack, where the delay was largely caused by a pending suit to cancel a deed as a cloud on decedent's title.

9. An order by a probate court for the sale of a decedent's land to pay his debts is a judgment of that court that the circumstances exist rendering a sale necessary; and the sale cannot be collaterally attacked on the ground that it was not necessary to pay decedent's debts.

10. Where an order for the sale of a decedent's land has been once renewed, a misrecital as to the date of the renewed order in the administrator's report is not a fatal error, rendering the sale subject to collateral attack.

11. The "probate and common pleas court" of Jackson county is none the less a probate court because it has common pleas business added to its probate business; and an administrator's sale of land in Jackson county, made while such court was in session for the transaction of probate business, is valid, under the statute requiring such sale to be made during the session of the circuit, probate, or county court.

12. Where the public administrator has been appointed administrator de bonis non in his individual capacity, his designation in subsequent proceedings as public administrator does not estop purchasers at sales made by him as private administrator from denying that he then acted as public administrator.

13. An order directing one who had been appointed administrator de bonis non to turn over the property of the estate to the public administrator is prima facie evidence that there is a vacancy in the office; and on a collateral attack on deeds thereafter executed by the public administrator the presumption that there was a vacancy when the public administrator took charge of the estate is not overcome by the fact that there is no resignation of the former administrator in the record, where it appears that many of the papers filed in the matter of such estate were lost.

14. A deed acknowledged before a person designating himself as clerk of court, and attested by the seal of the court, is not rendered invalid by a showing that such person had resigned his office a few days before he took the acknowledgment, where there is nothing to show when the resignation took effect, and it affirmatively appears that his successor did not assume the duties of his office until some time thereafter.

15. A recital in certified copies of an administrator's deed from the office of the recorder of deeds that the deed was executed under the hand and seal of the administrator gives rise to the presumption that the original deed was under seal, though the certified copies show no seal or scroll.

Error to circuit court, Johnson county; Charles W. Sloan, Judge.

Ejectment by Joseph P. Macey and others against John K. Stark. There was a judgment in defendant's favor, and plaintiffs bring error. Affirmed.

S. P. Sparks, L. B. Wheat, and H. Winston, for plaintiffs in error. C. O. Tichenor, for defendant in error.

BLACK, C. J.

This is an action of ejectment for some 220 acres of land situate in Jackson county. The land was patented to Albert W. Mason in 1836 and 1838. He conveyed the same to William M. Macey, by a deed dated the 7th February, 1846. The record discloses a deed from Macey to Jacob Johnson, dated in March, 1846, but this deed was declared a satisfied mortgage by the proceeding hereafter mentioned. William M. Macey died a resident of Platte county in July, 1847, leaving a widow, Jane H. Macey, and two sons. Joseph P. Macey was a son by the first marriage, and Charles S. a son by the last marriage. Charles died without issue, so that his interest passed to his mother and half-brother. She married a Mr. Wilson. The statement, as thus far made, leaves the title to the land in the plaintiffs Joseph P. Macey and Jane H. Wilson. The defendant sets up title under a sale made by John E. Pitt, administrator of the estate of William M. Macey, at which sale Robert G. Smart became the purchaser of a part of the land, and John Kelly became the purchaser of the residue. If this administrator's sale, and the deeds made thereunder, transferred the title of the Macey estate, then the plaintiffs cannot recover, and the judgment should be affirmed. As the plaintiffs have assigned no less than 63 alleged errors, it is necessary to set out all of the substantial steps taken in the course of the administration of the Macey estate. On the 22d July, 1847, the clerk of the county court of Platte county granted letters of administration upon the estate of William M. Macey to James S. Thomas. The following entry appears under date of May 4, 1848: "Now at this day comes James S. Thomas, administrator of the estate of Wm. M. Macey, deceased, and makes settlement of said estate upon his resignation, which is shown thus;" and then follows a statement of the accounts, showing a balance in his hands of $20.27; and the record concludes with these words: "The court allows the administrator the sum of $20.27 for his services." Thomas had nothing further to do with the estate and in June, 1848, the court directed Jacob Swope, public administrator, to take charge of the Macey estate, and complete the administration. On the 22d April, 1850, Swope resigned his office, and the probate court of that county appointed John E. Pitt public administrator, and he qualified by giving bond. The probate court then ordered the Macey estate into the hands of Pitt, as public administrator. Pitt filed an inventory, showing cash received from Swope to the amount of $633. Although Pitt took charge of the estate as public administrator, still, in October, 1850, letters were granted to him as administrator de bonis non of the Macey estate, and he gave bond as such administrator in that particular estate. These letters were granted to Pitt by the judge in vacation. On the 4th November, 1850, and in term time, the court made this order: "The bond of John E. Pitt, administrator de bonis non of the estate of William M. Macey, deceased, taken in vacation, is approved by the court, and ordered to be filed." Pitt, as such administrator, pursuant to an order of the probate court, made in 1853, commenced a suit in the Jackson county circuit court to have the deed from Macey to Jacob Johnson, dated 18th March, 1846, and before mentioned, declared a mortgage, and for leave to redeem. By amended pleadings the widow and heirs of Macey were made parties plaintiff with him. Such proceedings were had in that case that the court, in April, 1857, adjudged the deed a satisfied mortgage. There was a further decree setting the deed aside, and declaring the title to the land in the heirs of Macey, the same as if the deed had never been executed. On the 8th April, 1858, Pitt, as administrator, petitioned the probate court for an order to sell this land in Jackson county, to pay debts of the deceased. The proceedings then had are entitled "In the matter of the estate of W. M. Macey, deceased." The usual order was made to show cause on or before first Monday in July, 1858. On the 8th July, 1858, the court made a finding to the effect that the notice to show cause had...