Rogers v. Johnson

• Decision Date: 04 December 1894
• Citation: 28 S.W. 635,125 Mo. 202
• Parties: ROGERS v. JOHNSON et al.
• Court: Missouri Supreme Court

28 S.W. 635

125 Mo. 202

ROGERS v. JOHNSON et al.

Supreme Court of Missouri, Division No. 2.

December 4, 1894.

ADMINISTRATOR DE BONIS NON — SALE UNDER ORDER OF COURT — COLLATERAL ATTACK — ADVERSE POSSESSION OF HEIRS.

1. A judgment of a probate court, having jurisdiction of the parties, allowing a sale of a decedent's land for debts which accrued after his decease, is not subject to collateral attack.

2. Though an order was made approving the final account of the original administrator, it will be presumed, in favor of the legality of the appointment of an administrator de bonis non, that the estate had not been fully administered, unless the contrary is shown.

3. A notice by an administrator of an intention to apply for an order to sell his decedent's lands for the payment of debts may be used by his successor as administrator of the same estate, in case the first administrator fails to effect a sale.

4. An order of a probate court, having jurisdiction of the parties and the subject-matter, approving a sale of land by an administrator, is not subject to collateral attack.

5. Since the heirs take subject to the payment of the debts of the deceased, their possession

is not adverse to a purchaser at an administrator's sale for the payment of debts.

6. Purchasers of land from the heirs, though for value and without notice, take subject to the lien for the payment of the decedent's debts.

7. An administrator is not guilty of laches for delay in selling land, where it appears that the delay was caused by frequent disapproval of attempted sales, and by injunction proceedings by other parties.

Appeal from circuit court, Greene county; W. D. Hubbard, Judge.

Ejectment by John C. Rogers against J. L. Johnson and another. Judgment for plaintiff, and defendants appeal. Affirmed.

T. J. Delaney, for appellants. Jas. R. Vaughan, for respondent.

BURGESS, J.

Ejectment for lands in Greene county, Mo. The plaintiff claims title through an administration sale made by J. C. Woody, administrator of the estate of Abraham Woody, under an order of sale made in the probate court of Christian county, Mo., for the payment of debts, — more particularly, a debt of one Jane Brown, which debt was duly allowed in the probate court of Christian county, and classed in the fifth class of demands against that estate, on the 30th day of October, 1873. From this order of classification an appeal was taken to the circuit court of Christian county, and subsequently to this court, where the judgment of the said probate court was affirmed. Brown v. Woody, 64 Mo. 547. Subsequently, J. C. Woody, as administrator de bonis non, filed his application in the probate court of Christian county for an order of sale of the lands to satisfy this judgment, which had been classed as a general demand against the estate. An order of publication was made, and notice to the heirs duly published; and at the November term, 1868, an order of sale was made of the land in controversy, with other land, for the payment of debts. One William H. Johnson, who had theretofore acquired the title of the heirs of Abraham Woody, James Cave and wife (the latter a daughter of Abraham Woody), conveying to Wilkerson (Johnson's grantor) by quitclaim deed, and on the 7th day of February, 1869, began injunction proceedings to restrain the sale of the said land, obtaining a temporary writ. But at the September term, 1879, of the circuit court of Christian county, the injunction was dissolved, the suit dismissed, and final judgment made in said cause, but not properly entered. From this judgment an appeal was taken by the said William H. Johnson to the supreme court, which was dismissed on the 21st day of May, 1883, for the reason that the judgment was not final. Subsequently, a final judgment, in proper form, was entered by a nunc pro tunc order at the February term, 1884, of the said circuit court, at which time said William H. Johnson appeared, and had said injunction suit docketed, filed a motion to set aside the said nunc pro tunc judgment, and also filed a bill of exceptions to the action of the court. The said Johnson and others, including the defendants in this action, who were then the holders and owners of the land, on the 12th day of February, 1884, also appeared in the probate court of Christian county, and filed objections to the sale of the land, and any other proceedings for the sale of the land by said Woody, as administrator, to pay debts, which motion was by the court overruled. The petition in the injunction suit was based on the theory that there had been devastavit by the former administrator, — alleging, also, that a large amount of personal property had been distributed to the heirs of Woody, and that this should have been recovered back, and applied upon the debt; that a large amount of other lands had been left out of the order of sale, etc. On the 14th day of August, 1883, the said Woody, as such administrator, reported a sale of the land, made just prior to the writ of injunction, which sale was disapproved, and a new order made. At the November term, 1883, of the said court, he again reported a sale of the land, which was disapproved, and the order of sale again renewed. At the February term, 1884, he made another report of sale, which was disapproved. And again, at the May term of the said court, he reported a sale of the said land to Lee Holland, which sale was approved; and under this sale plaintiff claims the title upon which he bases this action, he having acquired by deed the title of Holland. The sales prior to that to Lee Holland were disapproved upon the ground that the sums at which the land was sold were inadequate. These renewed orders recited that all objections and motions to the contrary were overruled. Lee Holland conveyed the land to one James Cave, and Cave to the plaintiff. The answer filed by the defendants in this case pleads the 10-years statute of limitations, based upon adverse possession. It alleges, among other things, that all the title of J. D. Brown (Jane Brown's husband) had been acquired by the said Abraham Woody. It avers that Jane Brown, prior to the application to sell the lands, conveyed the same by quitclaim deed to one Wilkerson; sets forth a number of matters, equitable in their nature; and pleads the statute of limitations. The replication was a general denial. Upon the trial the principal defenses relied upon were: The statute of limitations, it being claimed that the possession of defendants and their grantors was adverse to the administrator and a purchaser under him. That the reappointment of J. C. Woody was void, and hence the administrator's sale by him was void. That no notice of application for an order of sale had been given, etc. Upon the trial the plaintiff...