Ross v. Julian

• Decision Date: 31 October 1879
• Citation: 70 Mo. 209
• Parties: Ross et al., Appellants, v. JULIAN, Public Administrator.
• Court: Missouri Supreme Court

70 Mo. 209

Ross et al., Appellants,

v.JULIAN, Public Administrator.

Supreme Court of Missouri.

October Term, 1879.

Appeal from Greene Circuit Court.--HON. W. F. GEIGER, Judge.

AFFIRMED.

P. T. Simmons for appellant.

1. The allowance of the Putnam claim did not create any lien on the real estate. And the recitations in the judgment of allowance give no validity to the proceedings, because the probate court has no jurisdiction to enforce vendor's lien. Prewitt v. Jewell, 9 Mo. 723; Local Acts of 1855, p. 58, 34.2. The allowance of the claim was an action in peronam, and should have been paid in common with all other fifth class demands. It did not take priority over claims allowed in the second class of demands. Nor was the vendor's lien extinguished by reason of the sale of the land to a person having knowledge of its existence. Where real estate is sold subject to an incumbrance, the proceeds of the sale become assets in the hands of the administrator for the payment of debts according to their classification. Welton v. Hull, 50 Mo. 299. 3. There are but two classes of lien that take priority in order of payment. 1st, The lien of a judgment; 2nd, The lien of an attachment. No lien attached by reason of the allowance of Putnam's claim in probate court, and, therefore, it took no priority. Wag. Stat., §§ 11, 12, p. 95. Demands against an estate must be paid in the order in which they are classed, and no demand in one class can be paid until all demands in previous classes are satisfied. Wag. Stat., § 29, p. 105.

H. E. Howell for respondent.

1. The probate and common pleas court had exclusive original jurisdiction of the vendor's lien, to find it and order it paid. Sess. Acts 1855, p. 57; Pearce v. Calhoun, 59 Mo. 271; Dodson v. Scroggs, 47 Mo. 285. 2. And if it did not, the order of the court for the administrator to pay the lien from which no appeal has been taken, is a sufficient protection for the administrator after he has, in good faith, obeyed it and paid out the money on it. Merritt v. Merritt, 62 Mo. 157; 3d Lead. Cas. in Eq., (3 Am. Ed.) 468.

HENRY, J.

In her life-time, Elizabeth Williams purchased of W. H. Putnam the west half of the northeast quarter of section 19, township 20, range 21, in Greene county, and agreed to pay for the same $240.35. Putnam executed a deed, but for the purchase money had a vendor's lien on the land. In May, 1875, he duly presented his demand against the estate of Mrs. Williams for allowance in the probate and common pleas court of Greene county, which was allowed and placed in the fifth class of demands against said estate, and in the or er allowing it the court found and declared that the d bt was incurred as above stated, that it was a lien on said land and to be first paid in full out of the sale thereof. Subsequently on the petition of the administrator, the defendant herein, the court ordered a sale of said land, and Putnam purchased it at the price of $350, in payment of which he was allowed by the administrator the amount of his said demand against the estate, and only paid the balance. There were allowances against said estate in the second class of demands, as follows: $10 in favor of E. T. Robinson, $25.50 in favor of T. J. Gray, and $10 in favor of T. E. Ross.

Ross and Gray filed a motion in said probate court asking that an order be made upon said administrator to pay their demands against the estate. After paying Putnam the amount of his demand and costs and expenses, &c., there were no assets in the administrator's hands for the payment of the second class of demands. The court made the order, and the administrator appealed to the circuit court of Greene county, where the judgment of the probate and common pleas court was reversed, and from the judgment of the circuit court Ross and Gray have appealed to this court. The petition upon which the order of sale was made, filed by the administrator, alleged that the personal estate of the intestate was insufficient to pay the demands against her estate; that there was no personal property or debts due the estate, and that there were debts due from deceased, as follows: specifying them as above except omitting the demand in favor of Robinson and including Putnam's claim, which the petition alleged was allowed as a lien on the above described estate, and prayed the court to make an order for the sale of the same, or so much thereof as might be necessary for the payment of the debts of the said estate. The order of sale made on this petition is not preserved in the bill of exceptions.

1. PROBATE JURISDICTION: vendor's lien.

For the administrator, it is contended that he was legally authorized and required by the order of the court allowing Putnam's demand, to pay him the full amount thereof out of the proceeds of the sale of the land; in this connection insisting that the probate and common pleas court of Greene county has exclusive original jurisdiction to ascertain and enforce vendor's lien upon the lands of an intestate. The jurisdiction of that court is substantially the same as that conferred by the statute upon county courts having probate jurisdiction, “to hear and determine all suits and proceedings instituted against executors or administrators upon any demand against the estate, when such demand shall not exceed, &c., and concurrent jurisdiction with the circuit court in all such cases, when the demand shall exceed that sum, subject to appeal to ...