Speck v. Wohlien

• Citation: 22 Mo. 310
• Parties: SPECK, Appellant, v. WOHLIEN AND WOLFF, Respondents.
• Decision Date: 31 October 1855
• Court: United States State Supreme Court of Missouri

22 Mo. 310

SPECK, Appellant,

v.WOHLIEN AND WOLFF, Respondents.

Supreme Court of Missouri.

October Term, 1855.

1. Whenever by the rules of equity a party is entitled to have a right to land vested in him, the remedy may be had, in St. Louis county, in the Land Court.

2. Where a sale of real estate of a decedent has been made under an order of the probate court for the payment of the debts of said intestate's estate upon a petition of the administrators, and the sale has been approved by said court, but the administrators have refused to make a deed of the land sold; held, that a court of equity can not compel the administrators to make a deed to the purchaser, nor can it, by its decree, vest the title to the land in said purchaser.

3. Where a sale of real estate of a decedent for the payment of debts is approved by the probate court at the same term during which the sale takes place, the heir, not having notice of such approval, so that he is deprived of his appeal, may call in question such approval in a suit brought against him by the purchaser for a devestiture of title.

Error to St. Louis Land Court.

This was a suit instituted by Ann C. Speck, against L. Rudolph Wohlien as the only heir of Diedrick W. Wohlien, and also of Anna Wohlien, his wife, and against John Wolff, as the surviving administrator of the said Diedrick W. Wohlien. Plaintiff, in her petition, prayed that the title to a certain lot, situate in the St. Louis common, might be vested in her, the said plaintiff.

The facts, as they appeared in proof on the trial, are as follows: The city of St. Louis, by deed dated May 22d, 1842, demised to Diedrick W. Wohlien lot No. 5, in block No. 14, of the St. Louis common, containing 3 57-100 acres, at an annual rent of $45 52; that being five per cent. upon the amount bid ($910 35) for said lot by him at a public sale. Wohlien had the privilege of at any time paying the amount of his bid, and upon so doing would have been entitled to receive a fee simple deed from the city. At the end of fifty years from the sale, and at the end of every fifty years thereafter, the lot was to be valued, and the said Wohlien was to pay as a yearly rent thereafter five per cent. upon such valuation.

The said D. W. Wohlien died about August 13th, 1842, leaving the respondent, L. Rudolph Wohlien, his only heir. His widow, Anna Wohlien, and the respondent, John Wolff, administered on his estate. At the December term, 1844, of the St. Louis Probate Court, said administrators presented their petition for the sale of so much of the real estate of their intestate as would pay the remaining debts due from his estate. Afterwards, all the steps required by law having been duly taken, said court, at its March term, 1845, ordered the real estate of the deceased, mentioned in the said petition, and as a part thereof the above described lot, to be sold on the first Monday of June, at the succeeding June term of said court. Said lot was duly appraised and was valued “at the sum of $1500 for the fee of the same, the purchase price of the same-- $910 35--being yet due to the city, which is included.”

On the day appointed in the order, to-wit, June 2d, 1845, all the requisites of the law having been complied with, all the right, title and interest of the intestate, in and to the lot in controversy, was duly exposed for sale. It was fully made known and explained to the bidders and others present at the sale, that there was due to the city on said lot the sum of $910 35, that being the amount of the bid made by the intestate, on which the annual interest, at five per cent., amounting to $45 52, was payable to the city in lieu of rent; that the annual interest, $45 52, for the year ending May 2d, 1845, was still due to the city and unpaid; that these sums would have to be paid by the purchaser. At this sale, the said Anna Wohlien, one of the administrators, being the highest and best bidder, became the purchaser of said lot, it being stricken off to her at the price and sum of $420. The said administrators made a report of this sale to the probate court, June 6th, 1845, and on the same day said sale was approved by said court.

It was in evidence that in the settlement of said administrators with the probate court, at its September term, 1846, among the items of debit against their intestate's estate there was the following: “Interest to city on real estate from May 2d, 1844, to May 2d, 1845, No. 2, $47 32.”

It was also in evidence that the sum bid by the said Anna Wohlien, to-wit, $420, was duly paid by her; that the rent or interest due the city was paid by her, January 7th, 1846; that if the said rent was charged by said administrators against the estate of their intestate, it was a mistake; that a final settlement of the estate of the said Diedrich W. Wohlien was made March 25th, 1848, and the administrators were discharged.

No deed was ever made by the said Wolff to his co-administratrix, the said Anna Wohlien, although the same was demanded soon after the sale by the said Anna. A deed from the said Wolff, joined in by herself, as administratrix, was also demanded, but none was ever made.

In the year 1846, after the said sale, the said Anna Wohlien executed a deed of relinquishment to the city of St. Louis of said lot, and received in return from the city a conveyance in fee simple of the same. She afterwards, on the 16th of January, 1846, sold and conveyed the said lot to the appellant, Ann C. Speck. She died in 1849, leaving the respondent, L. Rudolph Wohlien, her only heir at law.

The court below decided that it had no jurisdiction to order or decree a conveyance of the lot in controversy by either of the defendants, L. R. Wohlien and J. Wolff; nor to vest in plaintiff, by its own decree, any right, title or interest which the said D. W. Wohlien had in said lot. Thereupon, plaintiff took a non-suit, with leave to move to set the same aside, and a motion to that effect having been made and overruled, the case is brought here by appeal.

T. Polk, for appellant.

1. The Land Court had jurisdiction of this case, and had power to give the relief prayed for. (Sess. Acts, 1853, p. 90; Code of Practice, art. I, § 1 and 2, and art. II, § 1; R. C. 1845, p. 38-50, 634, 330, 331; Overton v. McFarland, 15 Mo. 315; Miller v. Woodward, 8 Mo. 171; 9 Mo. 339; R. C. 1835, p. 156; 15 Mo. 225; Story Eq. 529.) 2. The Land Court then having jurisdiction, the plaintiff is entitled to the relief sought. The sale of the lot in controversy was made after all the requisites of the law had been complied with, and having been approved by the court, Anna Wohlien, the purchaser, was entitled to have the title to the lot in question vested in her, and her co-administrator ought to have made her a deed conveying the same to her. He is the proper person to make the deed. (R. C. 1835, p. 53, § 22; Sess. Acts, 1851, p. 210, § 2.) But the question is not so much who ought to make the deed, as has appellant a right to the land. She clearly has. The heir and distributee has therefore been made a party. If it be maintained that the power of the administrator to make a deed is a statutory power, and that therefore the Land Court can not interfere with it, it is answered that this is not a case of a defective execution of a power. The execution of the power has here been carried to a certain point, and then stopped without cause and against right. The object of this suit is to have the execution carried forward and completed. The purchaser has done all on her part that she was required to do. In the case of Moreau v. Detchmendy, 18 Mo. 522, there was a defective execution of a statutory power. The same is true of the case of Bright v. Boyd, 1 Sto. 486. (See Chance on Powers, 54, 543; Alexander v. Merry, 9 Mo. 514.) 3. If it be objected that the land in controversy did not sell for three-fourths of its appraised value, and that therefore the sale was improperly approved, it is answered that the approval by the probate court of said sale has settled that question forever. Whether the court ought to have approved of the sale can not be inquired into collaterally, as in this case. (See 4 Wend. 436; 12 Id. 533; 8 Metcalf, 361; 2 Raw. 287; 2 Penn. 321; 8 Verm. 368; 11 S. & R. 422; 10 Pet. 473; 2 How. 319; 2 Pet. 169; 16 Mo. 21; 19 Mo. 96, 621.) The lot was however sold at three-fourths of the appraised value. 4. The objection that the report of the sale ought to have been made by the administrators to the next September term of the probate court, and not to the same June term during which the land was sold, is answered by saying that this is a matter that can not be reached collaterally in this suit. It could be reached only by appeal. (R. C. 1845, p. 106; 2 Verm. 253; 2 Green's Ch. R. 147; 16 Mo. 9.) Wolff, the co-administrator,...