Action by Louisa Roberts against Benjamin Best. From a judgment for defendant, plaintiff appeals. Reversed.
Suit in ejectment for an undivided one-fourth interest in 120.17 acres of land in Clark county, in this state. Plaintiff claims the land as an heir at law of one William Bartlett, her deceased father. Defendant's answer to plaintiff's petition is, first, a denial that plaintiff has any title to the land; then an equitable count is interposed in which the following allegations of fact are made: "That plaintiff's ancestor, William Bartlett, was at his death the owner of the land in suit, together with other land and a large amount of property. That said Bartlett, at the time of his death, was largely indebted to divers persons, firms, and corporations. That administration was had on his estate, and that one John Roberts (the husband of the appellant) and Henry Bartlett were duly appointed, qualified, and acting administrators of his estate. That all of the debts and claims against the estate of said Bartlett were duly probated against said estate, and judgment rendered thereon, which were liens against his estate. That the personal property belonging to his estate was exhausted in the payment of said claims, and was insufficient to fully pay off and satisfy said allowed claims against his estate. That from time to time, under orders from the probate court of said county, real estate was sold for the purpose of paying said claims, and the proceeds
thereof were applied to the payment of the same. That the said administrators, believing that there was enough personal property, with the real estate already sold, to pay off and discharge the indebtedness of the estate as allowed by said court, in good faith out of their own money paid off and discharged a large amount of the indebtedness of said estate as allowed by said court, and made settlement of said estate, which was approved. That afterwards these administrators commenced a suit in the circuit court of this county, asking to be subrogated to the rights of the creditors of said estate whose claims they had paid, and that the lands still remaining belonging to said estate be sold to satisfy such subrogated claims, which was the lands mentioned and described in the petition of the appellant. That afterwards in said cause in said court said administrators recovered a judgment and decree subrogating them to all of the rights of the creditors of said estate whose demands they had paid off and satisfied, and that the lands be sold for the payment thereof. That afterwards the said lands were sold in pursuance of and in obedience to said decree by a commissioner appointed by said court in said decree, and that one Lucy Bartlett purchased said lands at said sale, paid the purchase money thereof, which purchase money was paid to said administrators in full satisfaction of their claims found by said decree. That afterwards the circuit court in all things approved said sale and all of the acts of the commissioner in that behalf. That said commissioner made, executed, and delivered a deed to said lands, conveying to said Lucy T. Bartlett the lands mentioned in the petition. That said Lucy T. Bartlett, by deed of general warranty dated the 11th day of April, 1888, conveyed said lands to Lucy F. Selby and Joseph Selby, her husband. That Joseph Selby, by deed of general warranty, conveyed his undivided one-half interest in said lands to said Lucy T. Bartlett, dated the 24th day of April, 1888. That said Lucy T. Bartlett, by deed of general warranty dated the 25th day of April, 1888, conveyed to Lucy Selby the lands mentioned and described in the petition. That on the 1st day of May, 1891, said Lucy F. Selby and her husband, Joseph Selby, by deed of general warranty, conveyed said lands to one Lizzie Barnett; consideration, six thousand dollars. That said Lizzie Barnett, with her husband, by a deed of general warranty, dated the 22d day of February, 1892, conveyed said lands to this defendant, Benjamin Best; consideration, six thousand dollars. That each and all of the grantees held the possession of said lands under and by virtue of the deed aforesaid, and that the defendant, Best, at the date of his deed, took possession of said lands, and was at the time of the commencement of this suit in possession of the same, under his said deed. That by reason of the premises said defendant is subrogated to the rights of his prior vendors, and is entitled to be subrogated to the rights of the creditors of said estate, to wit, the said John Roberts and Henry Bartlett; and he asks to be subrogated." The defendant also filed a third count in his answer, setting up estoppel, and, fourth, a count setting up advancements made by William Bartlett in his lifetime to the plaintiff; the particulars of which last two counts, however, are of no concern in this appeal, since upon them the court found for the plaintiff, as it also did upon the issues presented in the first count. To the second count of defendant's answer plaintiff's reply was (and the facts on this appeal admit it to be true) that plaintiff was not made a party defendant in the subrogation proceeding which resulted in the sale of this land and its purchase by Lucy T. Bartlett (through whom defendant claims the land). As the issues raised by the third and fourth counts of defendant's answer were found against him by the trial court, this detail now is of no concern on this (plaintiff's) appeal from the finding of the trial court in defendant's favor on the issue raised by the second count of his answer. The trial court also found for the plaintiff upon the issue tendered in the first count of defendant's answer, and, as above indicated, found for the defendant on the second count, and rendered its decree accordingly. This appeal is prosecuted by the plaintiff from the action of the trial court in its regard.
As the decree rendered in the case discloses so fully both the facts found and the theory upon which the case was tried and considered below, it will be here inserted, and is as follows:
"Now, at this day comes the plaintiff herein, by her attorneys, W. T. Rutherford, and J. W. Howard, and the defendants by their attorneys, Charles Hiller, Berkheimer & Dawson, and Blair & Marchand, and this cause coming on to be heard upon the answers returned by the jury to the interrogatories heretofore submitted to them by the court, and the motion of the plaintiff to disregard the findings aforesaid and make a finding and enter a decree and judgment for plaintiff in accordance with the prayer of her petition, and the court, being fully advised in the premises, doth find that the plaintiff was on the 1st day of February, 1899, entitled to the possession of the undivided one-fourth of the following described lands and premises situated in Clark county, Missouri, to wit: Two and seventeen one hundreths (2.17) acres, beginning at a point on the north line of section No. twenty-nine (29), township No. sixty-five (65), range No. six (6) west, eleven (11) chains east of the northwest corner of the east half of the northwest quarter of said section No. twenty-nine (29), and running thence south seven and twenty-five one hundreths (7.25) chains, thence east three (3) chains, thence north seven and
twenty-five hundreths (7.25) chains, thence west three chains to the place of beginning, and being in the north part of the east half of the northwest quarter of said section No. twenty-nine (29); the south half of the south half of the southwest quarter of section No. twenty (20); and fifty-two acres off of the north end of the northeast quarter of section No. twenty-nine (29); and twenty-six (26) acres off of the north end of the west half of the northwest quarter of section No. twenty-eight (28); and twenty-six (26) acres off of the north end of the east half of the northwest quarter of section No. twenty-nine (29) — all in township No. sixty-five (65), range No. six (6) west. The court further finds that plaintiff, being entitled to the undivided one-fourth part of said lands and premises as aforesaid, defendant, Benjamin B. Best, afterwards, on the ____ day of ___, 1899, entered into possession of said lands and premises, and unlawfully withholds from plaintiff the possession thereof, to her damage in the sum of one cent, and that the monthly rents and profits of the undivided one-fourth part of said lands and premises is six and twenty-five one-hundreths dollars ($6.25). It is therefore considered, adjudged, and decreed by the court that plaintiff recover of defendant the possession of the undivided one-fourth part of the lands and premises hereinbefore mentioned and described, together with the sum of one cent for her damages aforesaid, assessed by the court, and also the sum of six and 25/100 dollars per month, the monthly value of the rents and profits of said lands and premises, until the said plaintiff be restored to the possession of the said lands and premises; and the court doth further order that an execution issue to restore to the said plaintiff the possession of said lands and premises, and for her damages, and the value of the monthly rents and profits aforesaid, and for her...
