Norton v. Reed

• Decision Date: 06 December 1913
• Parties: MINNIE NORTON et al. v. JOSEPH A. REED, Appellant
• Court: Missouri Supreme Court

161 S.W. 842

253 Mo. 236

MINNIE NORTON et al. v. JOSEPH A. REED, Appellant

Supreme Court of Missouri, First Division

December 6, 1913

Appeal from Reynolds Circuit Court. -- Hon. Joseph J. Williams Judge.

Affirmed.

Stuart L. Clark, Arthur I. Brewster and Sam M. Brewster for appellant.

(1) (a) The jurisdiction of the probate court of Reynolds county to order a sale of the real estate in controversy, attached upon the filing of the petition of the administrator, accompanied by the lists the law requires and the inventory of the property belonging to estate. Overton v. Johnson, 17 Mo. 422; Mount v. Valle, 19 Mo. 621; Grayson v Weddle, 63 Mo. 523; Patte v. Thomas, 58 Mo 173; Freeman, Void Judicial Sales (4 Ed.), 63. (b) The finding of the probate court that the order of publication had been published in the newspaper for more than four weeks before the first day of the term of court at which the order of sale was made, is conclusive in this action and cannot be collaterally attacked. Latriette v. Dorleque, 35 Mo. 233; Lewis v. Clarke, 52 Mo. 116; Freeman v. Thompson, 53 Mo. 183; Rumfelt v. O'Brian, 57 Mo. 570; Brawley v. Ranney, 67 Mo. 280; Robbins v. Boulware, 190 Mo. 50; Voorhees v. Bank, 10 Peters (U.S.), 449; State v. McCord, 207 Mo. 519; Freeman, Void Judicial Sales (4 Ed.), 81; 1 Woerner, Law of Adm., sec. 145. (c) The orders and judgments of the probate court are entitled to the same verity that is accorded to judgments of circuit courts and are not the subject of collateral attack. Camden v. Plain, 91 Mo. 117; Sherwood v. Baker, 105 Mo. 472; Macy v. Stark, 116 Mo. 451; Price v. Real Estate Assn., 101 Mo. 107; Brawford v. Wolfe, 103 Mo. 391; Covington v. Chamblin, 156 Mo. 574; Robbins v. Boulware, 190 Mo. 51: Langston v. Canterbury, 173 Mo. 131; Desloge v. Tucker, 196 Mo. 587; In re Davidson's Estate, 100 Mo.App. 263; Cobe v. Ricketts, 111 Mo.App. 105. (d) It is only where the records of the probate court show that it is impossible to publish the order of publication from the time of the filing of the petition for an order of sale and the making of the order of sale by the court, that the same can be collaterally attacked. Valle's Heirs v. Fleming, 19 Mo. 454; Mount v. Valle, 19 Mo. 623; Garner v. Tucker, 61 Mo. 427; Johnson v. Beazley, 65 Mo. 250; Agan v. Shannon, 103 Mo. 661; Kane v. McCown, 55 Mo. 200; Brawley v. Ranney, 67 Mo. 283. (2) (a) Neither the first count of the original or the first amended petition stated any facts constituting any cause of action in favor of plaintiffs authorizing the setting aside the deed of the administrator. The mere statement that said deed was void was but a conclusion of the pleader and stated no facts from which the court could find that said deed was void. Facts, not conclusions, must be stated. Humphreys v. Milling Co., 98 Mo. 552; Rogers v. Insurance Co., 186 Mo. 255. (b) Nor did the second count in either petition state any facts sufficient to constitute a cause of action in favor of plaintiffs for the recovery of the possession of the real estate, for the reason that there was no land described in either count. Newman v. Lawless, 6 Mo. 279; Livingston County v. Morris, 71 Mo. 603. (c) Each count in a petition must contain a complete statement of the facts constituting the cause of action and be complete within itself and cannot refer to other counts for constitutive averments. Clarke v. Iron Co., 9 Mo.App. 446; Boecker v. Railroad, 10 Mo.App. 451; Weber v. Squier, 51 Mo.App. 601; Graves v. Railroad, 133 Mo.App. 91; Russell v. Railroad, 83 Mo. 507; Bliss, Code Pleading, sec. 121. (3) Neither the original or the first amended petition having stated facts sufficient to constitute any cause of action in favor of the plaintiffs, either to set aside the administrator's deed, or for the recovery of the possession of the real estate in controversy, the Statute of Limitation was not arrested by the filing of either petition and the cause of action was barred by limitation. Lily v. Tobein, 103 Mo. 490; Bricken v. Cross, 163 Mo. 499; Walker v. Railroad, 193 Mo. 474; Cytron v. Transit Co., 205 Mo. 703.

Robert L. McLaran, J. B. Daniel and George E. Smith for respondents.

(1) No sufficient notice was published in this case, before the order of sale was made. This defect invalidated the whole subsequent proceeding. The giving of such notice as prescribed by the statute, is jurisdictional. Valle v. Fleming, 19 Mo. 455; Teverbaugh v. Hawkins, 82 Mo. 180; Hutchinson v. Shelly, 133 Mo. 400. (2) Notice of an application by an administrator to sell real estate to pay debts must be published for four weeks before the beginning of the term of court at which those interested are required to appear and show cause against the order of sale. Sec. 148, R.S. 1879. Four weeks means twenty-eight days from the first publication to the date of the beginning of the next term when parties are required to appear and show cause against the order, if any they have. If the order is made on less than twenty-eight days' published notice, the order is void, and the probate court has no jurisdiction to enter such an order of sale, as against the persons entitled to notice. Young v. Downey, 145 Mo. 250, 150 Mo. 317; Robbins v. Boulware, 190 Mo. 33. (3) The first and second petitions filed in the present suit were not model pleadings, but they did contain enough matter to amend by, and did suspend the running of the Statute of Limitations. (4) The recital in the order of sale that the administrator shows to the court that the notice by publication addressed to the parties in interest had been published for more than four weeks prior to the first day of the May term of said probate court, must be held to refer to the specific publication shown by the sworn proof of publication filed and made a part of the record in the same case. Judge Sherwood, speaking for this court, quoting from Mr. Freeman, says: "But no presumptions in support of the judgment are to be allowed in opposition to any statement contained in the record. If an act is stated in the roll as having been done in a specified manner, no presumption arises that at some future time the act was done in a more efficient manner. If it appear that the process was served in a particular mode, no other and different service can be presumed. To indulge such a presumption would be to contradict the record, which imports absolute verity. When, therefore, the record shows that certain steps were taken to procure jurisdiction and the law does not consider these steps sufficient, the judgment will be regarded as void for want of jurisdiction over the defendant." Freeman on Judgments, sec. 125; Cloud v. Inhabitants, etc., 86 Mo. 368; Stark v. Kirchgraber, 186 Mo. 646.

BROWN C. Bond, J., not sitting.

OPINION

BROWN, C.

This is an appeal from a judgment for plaintiffs for the recovery of a tract of land in Reynolds county described as follows:

"All that part of the east half of lot three of the northwest quarter of section five in township twenty-nine, north of range one east that lies west of the right of way of the Missouri Southern Railroad, and west and south of a line commencing at a point on the eastern side of said lot three, seven chains and thirty-seven links south of the northeast corner of said lot three, and running thence west nine chains and fifty-nine links, thence north one chain and thirty-three links, thence west four chains and thirty-three links, thence north to the north line of said lot three, excepting therefrom a strip three hundred feet wide on the south side of the east half of said lot three."

The original petition was filed October 23, 1907, and is not set out in the record. The amended petition upon which the case was tried was filed in term November 27, 1907. It is an ordinary petition in ejectment for an undivided four-fifths of the land described in it, to which the plaintiffs assert title by descent from Benjamin C. Vandyke (who died intestate in 1884), being four of the five children who survived him. It charges the ouster of August 4, 1901.

The defendant claims through an administrator's deed made May 13, 1889, by J. S. Rogers, administrator of Vandyke, to one Thomas Piles, for a consideration of seventy-five dollars, and also by adverse possession.

On August 4, 1906, the plaintiffs Minnie Norton, James T Vandyke and Catharine Dougherty, three of the children and heirs of the said Benjamin C. Vandyke, brought suit against this defendant, with I. F. Reed, William H. Reed, John L. Copeland, John Cooper, Bessie Cooper (born Vandyke), -- Cooper, -- Cooper, John C. Vandyke and others, in the circuit court for Reynolds county returnable at the November term. The Coopers mentioned as defendants are the husband and children of Bertie Cooper, a deceased daughter of Benjamin C. Vandyke, and John C. Vandyke is his son. The defendants other than the Vandyke heirs were occupying claimants in severalty of the land included in the administrator's sale already mentioned, which covered not only that now in controversy, but another tract described as twenty-five acres off the west side of the east half of lot two of the same quarter section. The petition attacked the administrator's deed in the following language: "Plaintiffs allege that the said deed was of no effect and void. That the said J. S. Rogers had no authority at law to make the same, but that said deed constitutes a cloud upon the title of these defendants (plaintiffs) to the said lands which in equity and good conscience ought not to be." Plaintiffs then "for a further cause of action . . . state that on the 10th day of August, 1896, they were entitled to the possession jointly with the defendants John C. Vandyke and Bertie Cooper . . . of all the lands above described. That on...