Mitchell v. Bliss
| Decision Date | 28 February 1871 |
| Parties | JANE W. MITCHELL, Defendant in Error, v. NORMAN W. BLISS AND WILLIAM MITCHELL et al., Plaintiffs in Error. |
| Court | Missouri Supreme Court |
Error to Fifth District Court.
Broaddus & McFerran, for plaintiffs in error.
The title of defendants in error to the land in controversy is through the deed of the administrator. But the report of the sale by the administrator was not made to the next term of the court, but at the same term, and thereupon conveyed to the defendants in error no title. (Strouse v. Drennan, 41 Mo. 289; Sess. Acts 1865, p. 86, §§ 1, 11.)
L. T. Collier and Turner, for defendant in error.
I. The plaintiffs in error can not properly question the regularity of any of the proceedings attending such sale, inasmuch as their pretended title in the premises was obtained through fraud and with full notice of the equities of defendant in error, as charged in the petition. (10 Pet. 473; 15 Ohio, 703; 2 How. 319.)
II. As to the time the sale was approved, see 16 Mo. 9; 19 Mo. 45; 22 Mo. 310; 36 Mo. 512; 41 Mo. 294.
The petition states that Robert W. Mitchell died, the equitable owner of certain real estate, for which he held a title bond from defendant Bliss; that the interest of said Mitchell was sold by his administrator for the payment of his debts, and purchased by the plaintiff; that the said Bliss, instead of conveying the title to the purchaser, conspired with the other defendants to defraud her, and, without consideration, executed to them a quitclaim deed of the premises; and the petition asks that said deed be canceled and that the title be vested in her. In setting out the sale the petition shows that the administrator failed to comply with section 33, chapter 122, Gen. Stat. 1865 (Wagn. Stat. 98), which expressly requires that the proceedings shall be reported to the court “at the next term of the court after such sale;” but, on the other hand, the order was made and the sale reported and approved at the same term of court. To this petition the defendants demurred, but the demurrer was overruled and judgment given upon it.
Upon the main question raised by the demurrer there can be no doubt whatever. The sale was irregular; the express requirement of the statute was disregarded--a requirement that has always been held by us to be a material one and essential to the validity of the sale. (Speck v. Wohlien, 22 Mo. 310; Strouse v. Drennan, 41 Mo. 289.) But the plaintiff claims that the defendants have no right to raise that question; that it is admitted by the demurrer that Bliss, the original vendor, conveyed the title to the other defendants to prevent the plaintiff from obtaining it, and that the heirs are alone interested in disputing the plaintiff's right. Suppose, under the petition, we treat the...
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Brown v. Marshall
...and Castleman v. Relfe, 50 Mo. 583, where it was clearly applicable, and also in the cases of Strouse v. Drennan, 41 Mo. 289, and Mitchell v. Bliss, 47 Mo. 353. The judgment of circuit court will be reversed and the cause remanded." In Stowe v. Banks, supra, the court held that where, after......
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Price v. Springfield Real Estate Ass'n
...was a court of limited jurisdiction, and every jurisdictional fact must appear affirmatively. Strouse v. Drennan, 41 Mo. 289; Mitchell v. Bliss, 47 Mo. 353; State Towl, 48 Mo. 148; Castleman v. Relfe, 50 Mo. 583; Gibson v. Vaughn, 61 Mo. 418. (2) The record shows that Joseph Weaver was one ......
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Brown v. Marshall
...and Castleman v. Relfe, 50 Mo. 583, where it was clearly applicable, and also in the cases of Strouse v. Drennan, 41 Mo. 289, and Mitchell v. Bliss, 47 Mo. 353. The judgment of the circuit court will be reversed and the cause In Stowe v. Banks, supra, the court held that, after an order to ......
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Henry v. McKerlie
...court, and the sale was approved the same day it was made. It was held that no title passed. No equity was set up by defendant. Mitchell v. Bliss, 47 Mo. 353, opinion by Judge Bliss, in 1871. The report of an administrator's sale, under an order of the probate court, was approved at the sam......