Rhodes v. Bell

• Decision Date: 19 July 1910
• Parties: RHODES et al. v. BELL et al.
• Court: Missouri Supreme Court

130 S.W. 465

230 Mo. 138

RHODES et al. v. BELL et al.

Supreme Court of Missouri, Division No. 2.

July 19, 1910.

1. COURTS (§§ 61, 63, 74)—TERMS—LEGISLATIVE POWER.

The Legislature has power to fix the times for holding the regular terms of court, and the judicial power can only be exercised at the time and places prescribed by law.

2. CONSTITUTIONAL LAW (§ 61)—COURTS — TERMS.

Const. art. 3 (Ann. St. 1906, p. 172), providing that the government shall be divided into three distinct departments, legislative, executive, and judicial, each of which shall be confided to a separate magistracy, and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any power properly belonging to either of the others, except as in the Constitution expressly permitted, is not contravened by Act March 19, 1866 (Laws 1865-66, p. 86), § 11, authorizing judges of probate to change the terms of court.

3. EXECUTORS AND ADMINISTRATORS (§ 362)— SALES—ORDER OF PUBLICATION—"PROCESS AND NOTICE."

Act Feb. 11, 1875 (Laws 1875, p. 425), changing the time for the holding of the April term of the probate court to the first Monday of April, directed that all writs, process, and notices returnable to such court next after the taking effect of the act should be made returnable to the first term of the county court held for the transaction of probate business. Held, that an order for publication of notice of sale of real estate, being a substituted process for the sale of real estate, was "process and notice" within the meaning of the act, and the clerk properly changed the return day of an order of publication made before passage of the act so as to conform the same thereto.

4. EXECUTORS AND ADMINISTRATORS (§ 346)— SALES — ORDER OF SALE — NECESSITY FOR STATING AMOUNT OF DEBTS.

Wag. St. 1872, p. 96, § 25, providing that when the petition, accounts, lists, and inventories shall be filed, the court shall order that all persons interested in the estate shall be notified thereof, and that, unless the contrary be shown on the first day of the next term, an order will be made for the sale of real estate to pay debts, does not require the court to find and state in its judgment the amount of the debts.

5. EXECUTORS AND ADMINISTRATORS (§ 348)— SALES—"JUDICIAL SALES."

Administrators' sales under orders of the probate court are "judicial sales," and the county court may modify an order of sale made by itself so as to authorize property which has been ordered to be sold at private sale to be sold at a public sale.

6. EXECUTORS AND ADMINISTRATORS (§ 348)— SALES OF LAND—ORDER FOR SALE—DESCRIPTION OF LAND.

Where an original order directing an administrator to sell land fully described the land, it was unnecessary to set forth a full description in a continuing order.

Appeal from Circuit Court, Stoddard County; J. L. Fort, Judge.

Action by Altha Rhodes and others against Charles C. Bell and another. Judgment for defendants, and plaintiffs appeal. Affirmed.

Jno. C. Brown, for appellants. Oliver & Oliver and Wammack & Welborn, for respondents.

GANTT, P. J.

This is an action under section 650, Rev. St. 1899 (Ann. St. 1906, p. 667), to quiet the title to the southwest quarter and the east half of section 12, township 23, range 11, Stoddard county, Mo. The plaintiffs stated that they were the owners in fee simple of the above-described tract; that the same was unimproved and unoccupied; that the defendants claim some estate and interest in and to the same, the exact nature of which is unknown to plaintiffs; but that said claims are adverse to the estate of the plaintiffs in said lands. The prayer was that the title might be ascertained as to the respective interests of the plaintiff's and the defendants in and to said real estate. The answer of the defendants was a general denial and plea of a 10 and 24 and 30 years' statute of limitations and a plea that the plaintiff's are estopped from claiming the lands by reason of their abandonment of them and their failure to pay any taxes on them for more than 25 years and by other laches. On the trial in the circuit court the defendants had judgment quieting the title in them, and the plaintiffs appealed.

Jesse B. Liggitt was the common source of title. The defendants derived their title to the lands through an administrator's deed dated April 23, 1878, recorded June 10, 1879, and made by Nancy Liggitt and James Gregory as administrators of the estate of Jesse B. Liggitt, deceased, to Elizabeth Henson, conveying the lands in controversy and by mesne conveyances therefrom.

The female plaintiff's are the heirs of Jesse B. Liggitt and assert that the administrator's deed under which defendants claim was void when made. The validity of that deed is the question at issue in this case in so far as the paper title is concerned. Jesse B. Liggitt died in September, 1873, and left as his only heirs three daughters, Jennie, Clara, and Altha Liggitt. Jennie married her co-plaintiff, Charles Gregory, in 1880. Clara married J. B. Terry in 1881. Altha married Samuel Rhodes in 1881. Jesse B. Liggitt also left surviving him his widow, Nancy Liggitt. James Gregory and Nancy Liggitt were the duly appointed and qualified administrators of the estate of Jesse B. Liggitt.

The defendants offered in evidence the administrator's deed to the lands in question, which was in due form, and thereupon the plaintiffs made their objections thereto, and in support of their objections the plaintiffs read in evidence the petition filed by the administrators on the 1st day of February, 1875, in the probate court of Stoddard county, asking for the sale of the lands in controversy and 500 acres of other lands, describing them all, for the purpose of paying the debts of the said estate. This petition was in proper form, and no objection has been made to it by the plaintiffs in this cause. The plaintiffs then offered in evidence the order of publication made by the probate court of Stoddard county on the 1st day of February, 1875, upon the said petition. This order of publication recited the filing of the petition for an order of sale, and it was ordered that all persons interested in the estate of the said deceased be notified that application as aforesaid had been made, and that, unless the contrary be shown on or before the first day of the next term of this court to be held on the 26th day of April next, an order would be made for the sale of the whole of said real estate, or so much thereof as would be sufficient to pay the debts of the deceased, and it was further ordered that notice be published by posting up 10 handbills in 10 different public places in said county at least 20 days before the first day of the next term of the court, and that publication in the newspapers be dispensed with. The plaintiff's insisted that this order of publication was void and was not a legal notice to the plaintiffs, who were the heirs of Jesse B. Liggitt, because the same was directed to and made returnable of a day when no court was by law required to be held, to wit, on the 26th day of April, 1875. This objection presents the first question for our determination. The time fixed by statute for the holding of the April term of the probate court in said county, at the time this order of publication was made, was the second Monday in April. The statute in force at that time, however, as the statutes of this state have always done, gave the probate court the power to change the time of holding its regular terms of court, and it was shown at the trial that the court by order of record had changed the time for the April term of said court from the second to the fourth Monday in April. Plaintiffs insisted in the circuit court, and still insist here, that the Legislature could not pass a valid act giving the courts the power to fix the times for holding their terms, and that the statute authorizing the courts to do so was unconstitutional as delegating legislative powers to the judicial department. After this order of publication was made, but before it was published, the Legislature of this state, by an act approved February 11, 1875 (Laws Mo. 1875, p. 425), changed the time for holding the April term of said probate court to the first Monday of April and directed that all process, notices, etc., returnable or to be made returnable to the next term of said probate court should be made returnable at that time, and further provided that said act should take effect and be in force from and after its passage. The plaintiffs introduced the proof of the publication of the above order of publication, which showed that the order was published exactly as the original order was made, except that the words "26th day of April next" were changed to "5th day of April next," evidently to conform to the aforesaid act of the Legislature of February 11, 1875. The plaintiffs insisted then, and now, that the order actually published was changed from the order really made by the clerk of the probate court. Plaintiffs also introduced the record of the probate court court showing that on the 8th of March, 1875, the court adjourned until the next regular term, to wit, the 5th day of April, 1875, and the record also was introduced showing that the court convened on the 5th of April, 1875, pursuant to adjournment. The plaintiffs, also, in support of this objection to the said deed, introduced the order of sale made on Tuesday, April 27, 1875. This order recited the filing of the petition for the sale of the real estate in controversy, and that publication had been made of the said order, and, the court having heard said petition and being satisfied that the personal estate was not sufficient to pay the debts, it was ordered that the administrators sell the land, describing it, for one-fifth in cash, etc., at private sale. The specific objection alleged to this order is that it contains no finding or recital...