Meddis v. Kenney

Citation75 S.W. 633,176 Mo. 200
PartiesMEDDIS v. KENNEY et al.
Decision Date20 June 1903
CourtUnited States State Supreme Court of Missouri

Appeal from Circuit Court, Cape Girardeau County; Henry C. Riley, Judge.

Action by Curtiss J. Meddis against Nancy R. Kenney and another. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

J. W. Limbaugh, for appellants. Angelo Dempsey and Robert L. Wilson, for respondent.

ROBINSON, J.

This is an action of ejectment, in statutory form, to secure possession of the north half of lot 3, range A, in the city of Cape Girardeau, Mo., known as the "John Albert Homestead." The suit was originally begun in the Cape Girardeau court of common pleas against the defendant Nancy R. Kenney, the tenant in possession. Afterwards H. H. Albert, the landlord of the defendant Kenney, was, on his own application, made a party defendant, and the venue changed to the Cape Girardeau circuit court, where the cause was tried by the court without a jury, resulting in a judgment for the plaintiff, from which defendants have appealed to this court. The petition is in the usual form, and the answer a general denial.

The record shows that John Albert died testate in Cape Girardeau county, Mo., in August, 1881, leaving surviving him his widow, Teresa Albert, and the following children, to wit: Anna, William, Robert, Clement, Jules, and the defendant H. H. Albert; that John Albert at the time of his death was seised of the land in suit, and occupied it as his homestead. Both parties claim through him, as the common source of title. By the last will of John Albert, which was duly probated in that county, Linus Sanford was appointed executor. After giving to each of his children the sum of $1, the will provides: "To my wife, Teresa Albert, I give and bequeath all the balance of my property of every kind, whether real or personal, after the payment of my debts." Sanford qualified and proceeded to administer on the estate. In 1897 Sanford, as such executor, filed his petition in the Cape Girardeau court of common pleas, a court possessing original probate jurisdiction, setting forth the facts that the personal property was insufficient to pay the debts of the estate, and prayed for an order authorizing him to sell the land in question. At the next term thereof, it appearing that the newly elected judge of the court, having been of counsel for H. H. Albert and his brother and sister, was disqualified to act in the matter, an order of record was made, certifying the cause to the Cape Girardeau circuit court, as provided by section 1760, Rev. St. 1899, and the clerk was directed to transfer all of the original papers therein to the circuit court. Thereupon the circuit court, at its May term, 1897, made an order authorizing the executor to sell at public outcry the lot in question for the payment of debts; the terms of sale being one-fourth cash, and the balance payable in six months. The order was renewed at the August term, 1897, and on the 5th day of June, 1898, the executor, after having the lot appraised, sold the same at public sale in pursuance of the order aforesaid, at which sale the Fidelity Trust & Safety Vault Company, a Kentucky corporation, became the purchaser, for the sum of $2,005. The estate of Teresa Albert, the administration of which was pending in the city of St. Louis, Mo., held fifth-class demands against the estate of John Albert, amounting in the aggregate to about $1,800, and the Fidelity Trust & Safety Vault Company held a sixth-class demand, as trustee against said estate, for $1,500. Shortly prior to the sale the executor represented to the agent of the Fidelity Trust & Safety Vault Company that he did not desire to handle any of the purchase money to be paid for this property, except an amount necessary to pay the expense of the sale, and that, if the Fidelity Company would purchase these demands against the estate, he would accept them as cash. Thereupon the Fidelity Company purchased all the outstanding demands against the estate, except the one held by it as trustee, and paid the costs of the sale, including the executor's commission. The money derived from the proceeds of the sale of the lot in question was paid to the defendant H. H. Albert, and his brothers and sisters. Upon these facts the circuit court, at the next term thereafter, approved the sale, and ordered the executor to make a deed to the purchaser. Afterwards, one of the securities on the executor's bond having died, the circuit court, upon the application of a creditor of the estate, ordered the executor to give a new bond. Having failed to comply with this order, the executor's letters were revoked, and Leon J. Albert was appointed as administrator de bonis non with the will annexed, and duly qualified as such. On the 8th day of ...

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