Rhodes v. Bell
| Decision Date | 19 July 1910 |
| Parties | ALTHA RHODES et al., Appellants, v. CHARLES C. BELL and F. W. PLOGER |
| Court | Missouri Supreme Court |
Appeal from Stoddard Circuit Court. -- Hon. J. L. Fort, Judge.
Affirmed.
John C Brown for appellants.
(1) The order of publication by which the court sought to acquire jurisdiction of the heirs was void, because not made returnable at the time required by law. Wagner's Stats sec. 25, p. 96; Laws 1869, p. 193; Laws 1865, sec. 11, p. 86; Holladay v. Cooper, 3 Mo. 286; Haws v Clark, 37 Ia. 355; Calkins v. Miller, 75 N.W. 1108; Young v. Downey, 145 Mo. 260. (2) Section 11, Act of March 19, 1866 (Laws 1865-6, p. 86), purporting to grant to the probate court of Stoddard county the right to change the dates for holding its regular terms, is unconstitutional and void, because it delegates legislative powers and requires legislative powers to be performed by a person holding a judicial position. Constitution of 1865, art. 3, and art. 4, sec. 1, W. S., p. 44; State v. Field, 17 Mo. 529; State ex rel. v. Ross, 118 Mo. 46; Doss v. Wagner, 3 Tex. 515; State ex rel. v. Young, 9 N.W. 737; Stephens v. Truman, 59 P. 397; Maxwell v. Baldwin, 40 Md. 273; Hutcherson v. Leenbock, 74 P. 598; Glasspell v. Jamestown, 88 N.W. 1023; Dent v. U.S. 71 P. 921; State v. Rogers, 73 N.E. 461. (3) The order of publication by which the probate court sought to acquire jurisdiction of the heirs is void, because it was not published as made, but in lieu thereof a different order, returnable at a different date, was substituted and published by the probate clerk. Otis v. Epperson, 88 Mo. 131; Kelly v. Murdagh, 184 Mo. 377. (4) All the so-called orders of sale upon which respondents' title is based are void, because they fail to contain any finding or recital of the amount necessary to be raised by a sale of real estate. Wagner's Stats., sec. 26, p. 97; Young v. Young, 80 Tenn. 335 (Lea) ; Williams v. Bollinger, 122 Mo.App. 450; Noe v. Mountry, 170 Ill. 169; Redman v. Adams, 88 Mo.App. 534. (5) The renewal order of sale made March 27, 1877, upon which respondents' title is based, is void, because the court illegally changed the terms of sale from a private to a public sale without notice to the heirs. Wagner's Stats., sec. 34, p. 98; Ault v. Bradley, 191 Mo. 729; George v. Middough, 62 Mo. 551; Capen v. Garrison, 193 Mo. 335; Jefferson Co. v. Cowan, 54 Mo. 234; Evans v. Snyder, 64 Mo. 518. (6) The administrator's sale under which respondents claim title is void, because the sale of the land in controversy was without cause illegally adjourned from April 25, to September 5, 1877, by an order which does not describe the land. Melton v. Fitch, 125 Mo. 281; Roberts v. Thomason, 174 Mo. 386; Walser v. Gilchrist, 220 Mo. 314.
Oliver & Oliver and Wammack & Welborn for respondents.
(1) The point made by appellants that the original order of publication is void is without merit. Overton v. Johnson, 17 Mo. 445; Camden v. Plain, 91 Mo. 130; Adcock v. Lecompt, 66 Mo. 43; Laws 1875, p. 425; Shipp v. Klinger, 54 Mo. 239. (2) So likewise is their contention that the order of publication, as published, was void for the reason that it was changed from the original order. Jasper Co. v. Wadlow, 82 Mo. 172; Laws 1875, p. 425. (3) The orders for the sale of real estate could not and need not contain any finding or recital of the amount necessary to pay the decedent's debts. Overton v. Johnson, 17 Mo. 445; Mount v. Valley, 19 Mo. 621; Grayson v. Weddle, 63 Mo. 523. (4) The probate court had ample authority, in making the renewal order of sale on March 27, 1877, to change the terms of the sale from a private to a public sale. Tutt v. Zenir, 51 Mo. 431. (5) The order adjourning the sale from April 25, to September 5, 1877, did not need to describe the lands. Camden v. Plain, 91 Mo. 130. (6) Our statutes have always vested jurisdiction over the administration of estates and the sale of lands for the payment of the debts of a decedent, in our probate courts and courts of like jurisdiction. All the orders, proceedings and judgments of these courts in such matters are as conclusive as are the judgments of a court of general jurisdiction. In a collateral proceeding, like this, they could be impeached only by showing that the court did not have jurisdiction to do what it did do in the particular case, and this would have to appear on the face of the record, or be shown from other parts of the record of equal dignity. Covington v. Chamblin, 156 Mo. 587; Camden v. Plain, 91 Mo. 129; Noland v. Barrett, 122 Mo. 181; Robbins v. Boulware, 190 Mo. 51; Macey v. Stark, 116 Mo. 494.
This is an action under section 650, Revised Statutes 1899, to quiet the title to the southwest quarter and the east half of section 12, township 23, range 11, Stoddard county, Missouri.
The plaintiffs stated that they were the owners in fee-simple of the above described tract and 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 plaintiffs and the defendants in and to said real estate.
The answer of the defendants was a general denial, and plea of the ten and twenty-four and thirty-year Statute of Limitations, and a plea that the plaintiffs 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 twenty-five 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 plaintiffs 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 first day of February, 1875, in the probate court of Stoddard county, asking for the sale of the lands in controversy and five hundred 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 first 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 ten handbills in ten different public places in said county at least twenty days before the first day of the next term of the court and that publication in the newspapers be dispensed with. The plaintiffs 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 be made returnable on 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, ...
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