Rollins v. Shaner

• Decision Date: 14 March 1927
• Docket Number: 25974
• Citation: 292 S.W. 419,316 Mo. 953
• Parties: Dewitt Rollins et al. v. L. M. Shaner et al., Appellants
• Court: Missouri Supreme Court

292 S.W. 419

316 Mo. 953

Dewitt Rollins et al. v. L. M. Shaner et al., Appellants

No. 25974

Supreme Court of Missouri

March 14, 1927

Appeal from Cape Girardeau Court of Common Pleas; Hon. John A Snider, Judge.

Reversed and remanded (with directions).

Spradling & Dalton and Hines & Hines for appellants.

(1) Plaintiff was required to establish by clear, cogent and convincing testimony, that he was entitled to the immediate possession of the land, as against the administrator, who was ordered to take charge of the land by the Probate Court of Cape Girardeau County, under the provisions of Sec. 130, R S. 1919. The making of this order vested the administrator with the right to the immediate possession of the premises "until such time as such heirs or legatees shall appear and petition the court to turn the management of said real estate over to them, or until the same shall escheat to the State as provided by the escheat act." (2) That part of Section 130 which directs the heirs who claim the same or might claim the same to go to the probate court and claim it was binding on plaintiff. If plaintiffs had any remedy as against the administrator it was not ejectment, but by petition to the probate court to set aside the order, giving the administrator notice. The statute so speaks in plain terms. Any other construction of the statute would result in conflict of the courts, each trying to exercise the control over the administrator. To set aside an order made under Section 130 the heirs should have complied with its plain requirements, otherwise both the order and the statute would be a mere nullity. (3) The heirs may not sue in ejectment and recover from an administrator who is in possession of the premises under an order of the probate court. Eoff v. Thompkins, 66 Mo. 225; St. Louis Nat. Bank v. Field, 156 Mo. 310. (4) The rule is: "When a court of competent authority takes jurisdiction, that fact excludes the jurisdiction of all other courts over the case, and all its incidents, excepting courts as have appellate and supervisory control, there being nothing left to which the jurisdiction of another court can attach." State ex rel. v. Reynolds, 209 Mo. 161, 15 L. R. A. (N. S.) 963. There is nothing in the record of the probate court to show that the order directing the administrator to take charge was void and that is the only way that this order can be attacked, by the record of the probate court itself. Langston v. Canterbury, 173 Mo. 131. (5) The answers filed by the other defendants could neither lessen nor prejudice the rights of the administrator to the possession of the land under the said order of the probate court. The said order was a complete protection to the administrator as against any suit at the hands of the heirs, and any answers or issues presented by the other defendants in the case could not change this rule, and the trial court should have so found. Under the holdings in the foregoing cases the administrator was entitled to possession, notwithstanding other defendants may have raised other issues. For plaintiff to recover in ejectment he must be entitled to the possession of the land at the time of the institution of the suit. Sec. 1815, R. S. 1919.

Hardesty & Limbaugh for respondents.

(1) There was no lack of jurisdiction in the trial court, and its judgment doing full justice on all issues of the case should be affirmed. (a) All parties submitted the case to the common pleas court, thereby waiving any prior jurisdiction of the probate court. Secs. 1970, 13681, R. S. 1919; Paskewie v. Ry. Co., 197 Ill.App. 1. (b) The probate court's jurisdiction was inadequate for adjudicating the issues herein, and was not concurrent with or sufficient to oust the adequate jurisdiction of the common pleas court. Secs. 129, 130, 2542, R. S. 1919; Langston v. Canterbury, 173 Mo. 122; Re Pitts' Est., 153 Iowa 269; Re Morrison's Est., 196 Pa. 81; State ex rel. v. Wurdeman, 232 S.W. 1002; Secs. 2436, 13681, R. S. 1919; State ex rel. v. Ittner, 304 Mo. 135; State ex rel. v. Holtcamp, 266 Mo. 347; 15 C. J. 1134; Lauraine v. Masterson, 193 S.W. 708; Wyss v. Bookman, 212 S.W. 299; Wilson v. Baker, 64 Cal. 476; Berry v. Hindman, 129 S.W. 1181; Pietraszwicz v. Pietraszwicz, 181 N.W. 722; Stehn v. Hayssen, 124 Wis. 583. (c) No possible conflict of jurisdiction or prejudicial error appear from the record herein and the judgment should, therefore, be affirmed. State ex rel. v. Reynolds, 209 Mo. 161; Hamilton v. Crowe, 175 Mo. 645.

Davis, C. Higbee, C., concurs.

OPINION

DAVIS

This is an action in ejectment instituted to obtain possession of sixty-one acres of land in Cape Girardeau County. The petition, after averring the usual matter in ejectment, set forth that plaintiffs are children of Medora Rollins, formerly the wife of Alfred Rollins, and are the natural sons and only heirs of John Green, deceased, who lawfully married Medora Rollins after the birth of these plaintiffs, whom he recognized as his sons. The court found in favor of Linus Rollins, adjudging that he was the sole heir of John Green and entitled to the possession of the land, entering judgment accordingly, from which judgment defendants appealed. The court further found against DeWitt Rollins, but as he failed to appeal, we dismiss him from further consideration.

The petition named L. M. Shaner, administrator of the estate of John Green, deceased, the sole defendant. However, the brother and sisters of John Green, to-wit, Joseph Green, Sarah Green, Roxana Green and Della Williams were made, on their motion, defendants. The court on its own motion caused Cassie, Robert and Sarah Green, the minor children of a deceased brother of John Green, to be made defendants and ordered summons issue for them.

The petition and answers allege that John Green died intestate, leaving the sixty-one acres of land in Cape Girardeau County, and that defendant L. M. Shaner was appointed, by the Probate Court of Cape Girardeau County, administrator of his estate. The answers then set forth that the administrator became lawfully possessed of the land by virtue of an order of the probate court, still in force, which gave the probate court jurisdiction over the real estate for the purposes mentioned in the order, and held the administrator accountable to the probate court for the management and control thereof, and that plaintiffs were not entitled to possession.

The order of the Probate Court of Cape Girardeau County, relative to the control of the real estate of John Green, reads: "And it appearing to the court that deceased died possessed of certain real estate, situate in the County of Cape Girardeau, State of Missouri, and that the heirs of said deceased have failed to take charge of the same; it is ordered by the judge of the court, on his own motion, that L. M. Shaner, administrator of said deceased, take charge and manage and control the same during the period of his administration, or until such time as the legal heirs of deceased may claim and take possession thereof."

Considering the view we take of the case, we deem it impertinent to relate other facts, but such additional facts, if any we think important, will be noted later.

I. An action in ejectment is based on the right of possession to real property. No matter how perfect and unassailable may be plaintiff's title in fee, ejectment fails unless it is shown plaintiff is entitled to possession. Section 1815, Revised Statutes 1919, under the title ejectment, reads: "An action for the recovery of the possession of premises may be maintained in all cases where plaintiff is legally entitled to the possession thereof."

In Evans v. Kunze, 128 Mo. 670, 31 S.W. 123, relative to ejectment, it is said: "While ejectment is an appropriate form of action in this State to try title, yet it is by nature a possessory action. Title to real estate does not always draw to it the right of immediate possession. Hence while the action of judgment always tries the right to possession, it may not always try the title. Hence a simple judgment in ejectment is not a bar to a subsequent like action upon the same title."

II. We are thus brought to the point of determining whether plaintiff was legally entitled to the possession of the real estate, which depends on and involves the right of the administrator of John Green's estate in that regard. His right to possess was founded on an order of the probate court reciting that the heirs of John Green had failed to take charge of the real estate, which then directed the administrator to take charge and manage same during the period of his administration or until such time as the legal heirs claim and take charge thereof. The order was based on Section 130, Revised Statutes 1919, which is as follows:

"Whenever letters of administration or testamentary shall have been granted on an estate, and it shall appear to the court or judge in vacation, that the decedent died possessed of real estate in the State, and his heirs or legatees have failed to take charge of same, or the identity or whereabouts of such heirs or legatees are unknown, then the court or judge in vacation may on its or his own motion, or that of any party interested, direct the administrator or executor in charge of said estate, to take charge and manage the real estate, until such time as such heirs or legatees shall appear and petition the court to turn the management of said real estate over to them, or until the same shall escheat to the State as is provided by the 'escheat act.'"

Empowered by the statute, it was within the discretion of the probate court to determine the facts necessary to the validity of the order, and as the order expressly recites a determinative fact, that the heirs of the deceased failed to take charge...