Murphy v. De France

CourtUnited States State Supreme Court of Missouri
Writing for the CourtGantt
Citation105 Mo. 53,15 S.W. 949
Decision Date19 March 1891
PartiesMURPHY v. DE FRANCE.<SMALL><SUP>1</SUP></SMALL>
15 S.W. 949
105 Mo. 53
MURPHY
v.
DE FRANCE.1
Supreme Court of Missouri, Division No. 2.
March 19, 1891.

PROBATE SALE — LIMITATIONS — HOMESTEAD.

1. Where an order of sale of the lands of a decedent to pay debts was procured by the representation of an attorney, representing creditors, that the property should be made to pay $1,000, but at the sale he failed to bid more than $100, at which figure the property was sold, and the sale confirmed by the court ordering it, the proper remedy is by appeal from the order of confirmation, and such facts will not support a bill to set aside the sale as obtained by fraud.

2. Where two attorneys representing allowed claims against the estate of a decedent in excess of the value of certain land, constituting the whole estate, agree that, as between themselves, all the allowances shall be of equal rank, and that upon a sale of the land one of them shall buy it for the use of all the creditors "pro rata," unless some other person shall bid enough to pay the debts, such contract is not fraudulent, as preventing competition, and a purchase pursuant to its terms is valid.

3. Allowances by the probate court of claims against the estate of a decedent are judgments of record, and the validity of an order of sale for their satisfaction cannot be attacked by evidence aliunde, to show that they had been paid or settled before the order was made.

4. Though the sale of land of a decedent to pay debts may have been irregular, if the heir waits until after the debts have become barred by the statute of limitations, and another sale impossible, before he assails it, and then fails to show when and how he first learned of the irregularities,

[15 S.W. 950]

his claim is stale, and a court of equity will not entertain it.

5. The widow and all the children of a decedent are essential parties to any proceeding for setting apart the homestead exemption, and plaintiff, claiming as heir and the grantee of other heirs, in proceedings to set aside a probate sale of decedent's realty on the ground of irregularities, cannot avail himself of the fact that he had a homestead right in the land.

6. A judgment of the probate court is entitled to the same presumption of validity as judgments of courts of general jurisdiction, and it is not essential to the validity of a probate sale, as against a homestead right, that the record of the probate court should show that the sale was made for an antecedent debt. Overruling Daudt v. Harmon, 16 Mo. App. 203.

7. A party desiring to avail himself of the statutes of limitations must plead the particular statute relied on.

Appeal from circuit court, Knox county; BEN. E. TURNER, Judge.

Blair & Marchand, for appellant. O. D. Jones, for respondent.

GANTT, P. J.


This is a suit in equity by Stephen Murphy, in his own right as heir and as assignee of the other children of Benjamin Murphy, deceased, to set aside a sale of certain real estate, sold by Guy Chandler, administrator of Benjamin Murphy, to appellant, De France, in October, 1874. The lands are 16 acres off the north side of N. E. ¼ of S. E. ¼ of section 8, and N. ½ S. E. ¼ section 6, township 62, range 15, in Adair county. This action was commenced September 22, 1886, in Adair circuit court, and on November 20, 1886, the venue was changed to Knox county. Judgment was rendered for respondent at the June term, 1888, against De France, and dismissed as to his co-defendant, James Dodson.

The petition is as follows "In the circuit court of Adair county, Mo., Stephen A. D. Murphy, Plff., against James M. De France and James Dodson, Dfts. Plaintiff states that he and Waddy Murphy, William Murphy, and Nancy J. Dodson are sons and daughters and sole heirs at law of Benjamin Murphy, deceased, who died in Adair county, Mo., in the year 1865, intestate, and seised in fee of the following real estate, to-wit: Sixteen acres off the entire north side of the north-east quarter of the south-east quarter of section eight, (8,) and the north half of the south-east quarter of section six, (6,) all in township sixty-two, (62,) range fifteen (15) west, 96 acres, more or less. And on the ___ day of ___, 1886, Waddy and William D. Murphy, aforesaid, and Nancy J. Dodson, executed and delivered to plaintiff good sufficient deeds for their interest as heirs of said Benjamin Murphy, deceased, in and to all said lands. That the estate of Benjamin Murphy, deceased, was July administered upon, and final settlement thereof made, in the year 1875. About the year 1874 the defendants, claiming and pretending to be creditors of plaintiff's ancestor's estate, made a fraudulent, collusive, and illegal agreement, to the effect that they would procure an order of the probate court of Adair county to sell the real estate herein described, after it had once been sold, and deed by a former administrator of said estate, under the cloud of that sale and deed. That by fraud and collusion, and by promising the judge of the probate court that said lands, if so sold under that cloud, they should not sell for less than one thousand dollars, and by repeated applications, they finally induced the court to make an order of sale of all said real estate. That in pursuance thereof said real estate was appraised by three qualified appraisers in the year 1874 to be of the value of $1,600. At the October term, 1874, of the Adair circuit court, the defendants caused said lands to be advertised for sale in pursuance to their said fraudulent and collusive agreement aforesaid to procure it to be sold under the cloud of a former administrator's deed, and they agreed in said written agreement that they would not bid against each other. That one of them, defendant De France, might bid off the lands, and then afterwards they would divide them pro rata between themselves; and to enable them to carry out their said fraudulent plan and scheme, and to prevent bidding at the sale, they published and reported, at and before the sale, that their claims far exceeded the value of the land, and no bidder would get a title against them; and by the use of these and other means they were enabled to entirely suppress bidding at the sale; and defendant De France did bid off all said lands at the grossly inadequate price of one hundred dollars. That the then administrator of the estate refused to report the sale of land to the probate court unless defendants would make his commission on the sale reach the figures it would have been if they had bid one thousand dollars, as they agreed; and defendants did give administrator fifty dollars to induce him to report the sale to the probate court of Adair county, and ask that it be approved, and make to defendant De France a deed, and it was all done in due time, and the administrator's deed was delivered to De France for the received consideration, one hundred dollars. And shortly afterwards defendant De France made a deed to defendant Dodson for an undivided forty-four one-hundreths of all said lands, and both deeds are duly recorded, and they claim title to all said real estate thereunder against plaintiff, and are in the actual possession of a part thereof since about the year 1884. Plaintiff says in truth and in fact defendants were no creditors of the estate of his ancestors, nor did they represent any such. That De France is an active, practicing, and licensed attorney, and in all his meddlings in the affairs of the estate, and in the written agreement with his co-defendant, he claimed and pretended to be a trustee for creditors of the estate, when in fact he was no such trustee, and in law and equity could not be. That in fact he has not paid any creditors he pretended to represent, anything. That, by their said fraudulent collusion and oppressive and illegal agreement aforesaid, they proposed to and have withdrawn all the assets of the estate from its proper and legitimate course of administration in the hands of the administrator, to go to creditors of the heirs, and have taken it in charge to

15 S.W. 951

administer between themselves in the forum of their own conscience, which is illegal, contrary to public statutes and policy, and in fraud of the whole administration law of the state, and the heirs of the estate. And plaintiff says that he and his grantors have only within the last year learned of the existence of said written agreement between defendants and the other fraudulent acts, as herein stated; and he asks decree that the said administrator's deed made to defendant De France, and the deed made by him to his co-defendant, Dodson, both be declared and decreed to be null and void, and for naught held; and that title to said real estate be quieted and vested in plaintiff, as between plaintiff and defendant; and for general relief, and costs of this suit. STEPHEN A. D. MURPHY. By Atty. O. D. JONES."

The defendant below, appellant here, pleaded the statute of limitations of 10 years, and, further answering, denied all the fraud charged, and set up that, although the estate had been finally settled, there were large judgments and allowances that were liens on this land; that defendants De France and Dodson owned and controlled, as attorneys, all these allowances; that De France in his own right, and as attorney for the various...

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23 practice notes
  • Lieber v. Lieber
    • United States
    • United States State Supreme Court of Missouri
    • December 23, 1911
    ...where the judgment is procured by fraud or through excusable mistake or unavoidable accident.' See, also, Murphy v. De France, 105 Mo. 53 [15 S. W. 949, 16 S. W. 861]; Oxley Stave Co. v. Butler County, 121 Mo. 614 [26 S. W. 367]. The same question was before the Supreme Court again in Nicho......
  • Ambruster v. Ambruster, No. 29912.
    • United States
    • United States State Supreme Court of Missouri
    • September 4, 1930
    ...defense need not be pleaded in an equity suit. Stevenson v. Smith, 189 Mo. 447, 466: Dexter v. MacDonald, 196 Mo. 373: Murphy v. DeFrance, 105 Mo. 53, 69. (3) The mere fact that an administrator inventories certain property in the estate does not bar him from showing that he himself was the......
  • Dorrance v. Dorrance
    • United States
    • Missouri Supreme Court
    • March 20, 1912
    ...as a defense (unless its interposition was prevented as a defense by fraud). Payne v. O'Shea, 84 Mo. 129; Murphy v. De France, 105 Mo. 53 [15 S. W. 949, 16 S. W. 861]; Oxley Stave Co. v. Butler County, 121 Mo. 614 [26 S. W. 367]. The judgment must be concocted in fraud, and the fraud must b......
  • Knisely v. Leathe, No. 16,411.
    • United States
    • Missouri Supreme Court
    • January 3, 1914
    ...take advantage of the statute of limitations, he must plead the very provision on which he depends (Murphy v. De France, 105 Mo. 53, 62, 15 S. W. 949, 16 S. W. 861; State v. Spencer, supra). In this case he pleaded not only the special statute limiting the time for the exhibition of demands......
  • Request a trial to view additional results
23 cases
  • Lieber v. Lieber
    • United States
    • United States State Supreme Court of Missouri
    • December 23, 1911
    ...where the judgment is procured by fraud or through excusable mistake or unavoidable accident.' See, also, Murphy v. De France, 105 Mo. 53 [15 S. W. 949, 16 S. W. 861]; Oxley Stave Co. v. Butler County, 121 Mo. 614 [26 S. W. 367]. The same question was before the Supreme Court again in Nicho......
  • Ambruster v. Ambruster, No. 29912.
    • United States
    • United States State Supreme Court of Missouri
    • September 4, 1930
    ...defense need not be pleaded in an equity suit. Stevenson v. Smith, 189 Mo. 447, 466: Dexter v. MacDonald, 196 Mo. 373: Murphy v. DeFrance, 105 Mo. 53, 69. (3) The mere fact that an administrator inventories certain property in the estate does not bar him from showing that he himself was the......
  • Dorrance v. Dorrance
    • United States
    • Missouri Supreme Court
    • March 20, 1912
    ...as a defense (unless its interposition was prevented as a defense by fraud). Payne v. O'Shea, 84 Mo. 129; Murphy v. De France, 105 Mo. 53 [15 S. W. 949, 16 S. W. 861]; Oxley Stave Co. v. Butler County, 121 Mo. 614 [26 S. W. 367]. The judgment must be concocted in fraud, and the fraud must b......
  • Knisely v. Leathe, No. 16,411.
    • United States
    • Missouri Supreme Court
    • January 3, 1914
    ...take advantage of the statute of limitations, he must plead the very provision on which he depends (Murphy v. De France, 105 Mo. 53, 62, 15 S. W. 949, 16 S. W. 861; State v. Spencer, supra). In this case he pleaded not only the special statute limiting the time for the exhibition of demands......
  • Request a trial to view additional results

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