Shaw v. Nicholay

• Decision Date: 31 March 1860
• Citation: 30 Mo. 99
• Parties: SHAW, Plaintiff in Error, v. NICHOLAY, Defendant in Error.
• Court: Missouri Supreme Court

30 Mo. 99

SHAW, Plaintiff in Error,

v.NICHOLAY, Defendant in Error.

Supreme Court of Missouri.

March Term, 1860.

1. A testator cannot, by devising his lands away, deprive his executor of the power of sale for the payment of debts.

2. In order to make a continuous adverse possession in successive occupants, so as to enable an occupant of land to avail himself of the possession of a preceding occupant, there should be some privity between them; the entry of the succeeding occupant must be with the consent of his predecessor, evidenced by contract, or by an act of the law passing the estate from the latter to the former.

3. A. died in possession of and claiming title to a block of ground, and devised the same to his widow. Paramount title to said block was in B. The widow, who, with another, were appointed executrix and executor of the will, made a compromise with B.--said widow and her co-executor conveying to B. one-half of the block, and B. conveying to the widow the other half. The probate court granted its consent to the making of this compromise on the application of the co-executor. Afterwards an order of sale was made by the probate court, and the widow and her co-executor sold and conveyed to C. all the right, title and interest which A. had in and to that portion of said block quitclaimed by B. to the widow of A. This sale was made for the payment of debts. After the death of A. the widow remained in possession of said ground up to the sale to C. Held, that the possession of A. was an interest in said block; that the widow, under the circumstances, could do no act by which the rights of creditors would be prejudiced; that she could not defeat the estate provided for the payment of debts, which would be done by annexing her possession as devisee to the title acquired from B.; that the sale by the executors to C. transferred the possession held by the devisee under the will, and that C., in making out a defence to an ejectment by the widow founded on the title acquired by her by virtue of the compromise with B., might connect his possession after the executors' sale with the possession of the widow previous to and after the compromise, and with that of A. previous to his death.

Error to St. Louis Land Court.

This was an action in the nature of an action of ejectment to recover possession of an undivided third of the south-half of block No. 204 in the city of St. Louis. The suit was instituted May 7, 1857, by Octavia Shaw. The defendant denies plaintiff's right, but admits possession as alleged, and asserts that he holds possession as tenant of Benoist, Page and the heirs of James Gordon. The defendant further says that prior to the death of Lyman B. Shaw, husband of plaintiff, said Benoist, Page & Shaw claimed to own said block No. 204; that the Board of the President and Directors of the St. Louis Public Schools also claimed to own the same; that said Shaw dying, devised his interest to plaintiff; that letters testamentary on his estate were granted to Franklin L. Ridgely and plaintiff; that said Benoist and Page (said Ridgely as executor, and said plaintiff as executrix and devisee) agreed with said School Board to compromise their conflicting interest in said block, the said Board to convey to said Benoist, Page and the representatives, devisee of said Shaw, their interest in the southern half, and said Benoist, Page, and said plaintiff as devisee of said Shaw, to convey to said Board their interest in the northern half, of said blcok; that in accordance with said agreement the School Board, on the 9th of December, 1845, passed a resolution to that effect; that on the 15th of December, 1845, said Ridgely, the acting executor, presented his petition to the St. Louis probate court, asking that the executors of said Shaw might be allowed to make said compromise; that the Board authorized said executors so to compromise; that on the____day of December, 1845, said compromise was effected, said Benoist, Page, and said plaintiff, in whom was the legal title to said Shaw's interest, conveying to said Board all their interest in the northern half of the block, and said Board conveying to said Benoist, Page, and said plaintiff, as being the devisee of said Shaw, the southern half thereof; that on the____day of ______, 1846, the said Ridgely and plaintiff, as executor and executrix, presented their petition to the St. Louis probate court asking that the interest belonging to the estate of said L. B. Shaw, being an undivided third of the south half of said block 204, be sold for the payment of debts; that in March, 1847, the court made such order of sale; that on the first Monday of June, 1847, said Ridgely and plaintiff, in accordance with said order of sale, sold said interest of an undivided third belonging to the estate of Shaw, and James Gordon became the purchaser, and on the 10th of April, 1848, received the deed of said Ridgely and plaintiff therefor; that said Octavia Shaw never had or held any interest or estate in any portion of said block 204 except what she acquired as devisee of said L. B. Shaw, and it was the interest she thus acquired and none other that she released to the Board of Public Schools; that no consideration for the deed of said Board to Benoist, Page and plaintiff was given other than the release to said Board of their interest in the northern half of said block. Defendant insists that the whole estate and interest in said lot which belonged to said Shaw at the time of his death, as well as what was conveyed by the deed of said School Board to plaintiff, was passed to and vested in said James Gordon, and that, by her acting and doings in that behalf, said plaintiff is forever estopped from setting up any title in herself derived under the deed of said Board to herself, Benoist and Page, if she ever had any.

At the trial the plaintiff introduced in evidence the survey of the United States of the block No. 204, and the documentary evidence showing a designation and assignment of said block to the City of St. Louis for the use of schools. The assignment was dated March 28, 1845; also the will of Lyman B. Shaw, dated October 7, 1845. By this will Shaw devised all his estate, real, personal and mixed, except certain small legacies, to his widow, the plaintiff, subject to the payment of his debts. He made Franklin L. Ridgely and the plaintiff executor and executrix of the will. Also the deed of the School Board dated December 12, 1845, conveying to Benoist, Page and plaintiff the south half of block. In this deed the plaintiff is made a party by her simple name Octavia Shaw, and no reference is made to L. B. Shaw or his estate.

From the testimony introduced by defendant, it appeared that Ridgley and plaintiff qualified as executor and executrix; that on the 9th of December, 1845, at a meeting of the School Board, it was resolved to accept the propositions for a compromise made by plaintiff, Benoist and Page; that by deed dated December 12, 1845, said parties conveyed to the School Board the north half of block No. 204. In this deed plaintiff is described as “heir and devisee of Lyman B. Shaw.” On the 13th of December, 1845, Ridgely filed a petition in the probate court setting forth the desirableness of a compromise with the Schools; that the other parties besides Mrs. Shaw had agreed to the compromise and awaited her signature to a deed of release to the Schools, and praying the judge to enter an order advising such compromise, and allowing Mrs. Shaw to pass her interest to the Schools in the north half of the block. The petition was signed by Ridgely alone. On the 15th of December, 1845, the court made the order as prayed. On the 21st of December, 1846, the court ordered the publication of the usual notice to parties interested, to show cause why at the next term of the court a sale of real estate should not be ordered for the payment of debts. In March, 1847, the probate court, on the motion of plaintiff and said Ridgely, as executrix and executor of the will of L. B. Shaw, made an order of sale of various lots and tracts of land for the payment of debts, including the interest now in controversy On the 10th of April, 1848, said Ridgely and plaintiff, as executor and executrix, conveyed to James Gordon, in pursuance of a sale previously made by them under the above order in June, 1847, “all the right, title, claim and interest which the said Lyman B. Shaw, deceased, had of, in and to the said land.”

The defendant also introduced evidence showing that at Shaw's death in 1844, said Shaw, Page and Benoist claimed said block as equal tenants in common by virtue of a deed executed by Antoine Smith and wife to Auguste Chouteau, dated June 15, 1818, and various mesne conveyances; that as early as 1840, or 1841, the persons through whom said Shaw, Page and Benoist claimed by said deeds had possession of said block, claiming the same adversely to all others; that this possession continued so; that, at the death of Shaw, he, Page and Benoist, had possession as tenants in common, and, after his death, and until said compromise was made with the School Board, said possession continued in said Page, Benoist and the representatives of Shaw. After the compromise they took and kept possession of the south half of the block. After the executor's sale Gordon took and held possession of said southern half with said Page and Benoist. The defendant is a tenant under the heirs of Gordon and Page and Benoist.

The court refused the two instructions or declarations of law asked by the plaintiff, one of which is as follows: “2. If the court find from the evidence that at the death of Lyman B. Shaw, he and Page and Benoist were in possession of block No. 204 of the city of St. Louis, embracing the land in controversy, as tenants in common, claiming the same as their own adversely to all others; that the same was set-off to the Board of President and Directors of St. Louis Public Schools, by authority of the...