Orchard v. Wright-Dalton-Bell-Anchor Store Co.

• Decision Date: 01 June 1917
• Docket Number: No. 19816.,19816.
• Citation: 197 S.W. 42
• Parties: ORCHARD et al. v. WRIGHT-DALTON-BELL-ANCHOR STORE CO. et al.
• Court: Missouri Supreme Court

197 S.W. 42

ORCHARD et al. v. WRIGHT-DALTON-BELL-ANCHOR STORE CO. et al.

No. 19816.

Supreme Court of Missouri, Division No. 1.

June 1, 1917.

Motion to Transfer to Banc Denied July 14, 1917.

Appeal from St. Louis Circuit Court.

Suit by George C. Orchard and others against the Wright-Dalton-Bell-Anchor Store Company and another. Judgment for plaintiffs and defendants appeal. Affirmed.

E. R. Lentz, of Poplar Bluff, for appellant Wright-Dalton-Bell-Anchor Store Co. Nagel & Kirby, of St. Louis, for appellant Dunkey. Lew R. Thomason, of Poplar Bluff, for respondents.

BOND, J.

I. This suit was commenced in August, 1903, has been three times tried, and this is the third appeal. The facts and questions resolved on the former appeals are set forth in 264 Mo. 554, 175 S. W. 884, and 225 Mo. 414, 125 S. W. 486, 20 Ann. Cas. 1072. In the first case cited the facts shown on the second appeal are summarized, and the questions decided on the first appeal are stated. A brief reference to the questions formerly decided and an additional statement of the facts and issues on the present appeal will now be made as the basis for our decision of the questions presented by this appeal by defendants from a judgment in favor of plaintiffs.

Mollie Kramer, subsequently known as Mollie Knight, Mrs. W. D. Knight, and Mollie Dunkey, owning the fee-simple title to a small lot of ground in Poplar Bluff, demised it on March 1, 1898, for 20 years to Antonio Saracini. In August, 1900, the lessee died, leaving a widow Mary Saracini, and two children, to whom he divided certain property, but did not mention this leasehold. His will was probated September, 1900, and by its terms Mary Saracini, his widow, was executrix without bond. On April 12, 1901, she assigned all her right and interest in said leasehold to George C. Orchard, the plaintiff herein, to whom her previous tenants attorned. On May 3, 1901, the defendant, then Mollie Dunkey, brought an action for unlawful detainer against Orchard and his two tenants to recover said leasehold for alleged forfeiture. She was cast in that suit, and upon appeal to the St. Louis Court of Appeals it was ruled that the leasehold had not been forfeited. Knight v. Orchard, 92 Mo. App. 466. Shortly after that action was commenced, and pending its determination, to wit, June 1, 1901, the said Mrs. Knight undertook, seemingly in anticipation of a favorable judgment, to make a lease for the unexpired term of said leasehold to the defendant store company. Thereupon the said store company disseized Orchard, and afterwards on July 19, 1901, entered into a contract with him for a permissive use pending litigation. This contract was admitted in evidence in this case in so far as it affected the right of plaintiff Orchard to recover damages, but was excluded in so far as it affected the interest of his two coplaintiffs, who did not sign it. All these transactions were had after the unlawful detainer suit was begun and before its final decision by the St. Louis Court of Appeals on February 18, 1902.

The contract between the store company and plaintiff Orchard shows that it was agreed that the store company, pending the final settlement of the right and title to the leasehold, should be permitted to erect a one-story brick building, and that in the event "the court should decide the title to the property is vested in the party of the first part (Orchard) and all legal questions affecting the title finally settled, the party of the first part agrees to purchase the building" under conditions and limitations stipulated, and thereafter the party of the first part would execute a lease to the premises for 16 years and 9 months from June 12, 1901, in consideration for which the party of the second part (store company) should pay, when the lease should be made, a rental of $50 per month, dating back from June 12, 1901, and continuing until the end of the term.

About January, 1902, Mary Saracini, executrix of the estate of Antonio Saracini, was removed for failure to give bond, and one Tetweiler was appointed as public administrator de bonis non, who proceeded, at private sale, to dispose of the leasehold in question to one Alexander Young, acting for Mollie Dunkey and making payment therefor out of money paid to him by her. On the first appeal of this case this sale was adjudged to be void and subject to collateral attack.

The record shows that prior to the date of his contract with the store company plaintiff Orchard, through his tenants, was in the actual possession of the premises, and that the only authority for the subsequent possession of the store company was a prior intrusion or trespass on the premises under the attempted second issue to it from Mrs. Knight, and afterwards under the aforesaid contract with said Orchard. The decision of the St. Louis Court of Appeals, affirming the right of Orchard to possession under the leasehold, was subsequently rendered on February 18, 1902. Thereupon Orchard tendered a lease to the store company as per contract, which was refused.

The final settlement of the estate of Antonio Saracini and discharge of Tetweiler, as administrator, was had in the probate court of Butler county on May 13, 1903. Shortly thereafter this action of ejectment was commenced. Whereupon Mrs. Knight obtained leave to join as codefendant with the store company. She has never had any possession of the lot since she leased it to the ancestor of plaintiffs.

II. It is insisted by the learned counsel for appellants that the assignor of respondent Orchard (Mrs. Saracini) and her two children acquired no legal title to the leasehold in dispute, because there was no transfer to them by the administrator. This contention overlooks the fact that the technical legal title of the administrator for the payment of debts did not exist in August, 1903, when this ejectment was brought; for at that time the administration of the estate of the husband and father had been closed and the administrator discharged, leaving this asset, the leasehold, unadministered and undisposed of except by the statutes governing descent and distribution.

While it is true that during administration the legal title to the personalty of the deceased is held in trust by his representatives for the purpose of payment of the debts of the estate, if any, yet it is true, also, under the laws of descent and distribution of this state, that the equitable estate and ownership is cast upon the heirs and distributees at the death of their ancestor (subject to be devested in case the administrator lawfully applies the personal property to the payment of debts), leaving the administrator only a naked trustee of the legal title of such property for the purposes of administration, or rather, a mere conduit for the transfer of the title for such purposes. It necessarily follows that upon the cessation of his trust, i. e., "closure of administration," his title as such statutory trustee instantly ceases, and the right and title of the heirs and distributees to an undisposed of asset such as this leasehold becomes legal as well as equitable, and may be enforced against the administrator himself. Bell v. Bank, 188 Mo. App. loc. cit. 388, 174 S. W. 196, et cases cited. This explicit statement of the rule was implicitly held on the last appeal. Orchard v. Store Co., 264 Mo. loc. cit. 554, 175 S. W. 884. In this case upon the death of Saracini, the equitable title to this leasehold vested in his widow and two children, and the bare legal title remained in his executrix, the mother. Thereafter, upon her removal, the succeeding administrator, Tetweiler, did nothing as to this asset except to make an abortive attempt to sell it; he did not in any way seek to annul the previous conveyance of this leasehold by the executrix to Orchard. This asset, therefore, was not lawfully used for the purpose of administration, wherefore, upon the "closure of administration" eo instanti, the title of the mother, or her assignee, Orchard, and the two children became full and consummate, legal as well as equitable. R. S. 1909, §§ 332, 349.

In an action of ejectment, the plaintiff may recover in three ways: First, by deraigning a fee-simple title from the government, good against the world (Chaput v. Pickel, 250 Mo. 587, 157 S. W. 613, et cases cited); second, where the two parties claim under a common ancestor by showing the plaintiff got title of this ancestor; and, third, the action of ejectment under our statute being purely a possessory one, the plaintiff may recover against a mere intruder or trespasser without any further showing than a prior possession in himself of which he was disseised by defendant. Love v. Love, 250 Mo. 491, 157 S. W. 590; Kelpe v. Kuppertz, 235 Mo. loc. cit. 485, 139 S. W. 335; McVey v. Carr, 159 Mo. loc. cit. 653, 60 S. W. 1034; Hall v. Gallemore, 138 Mo. loc. cit. 644, 40 S. W. 891; Evans v. Kunze, 128 Mo. 670, 31 S. W. 123; Bains v. Bullock, 129 Mo. 117, 31 S. W. 342; White v. Keller, 114 Mo. loc. cit. 483, 21 S. W. 860; Prior v. Scott, 87 Mo. 303; Roger v. Mayes, 84 Mo. 520; Dunn v. Miller, 75 Mo. 260; Bledsoe v. Simms, 53 Mo. 305. In the instant case the learned counsel for appellant...