Stark v. Kirchgraber

• Decision Date: 21 February 1905
• Citation: 85 S.W. 868,186 Mo. 633
• Parties: STARK et al. v. KIRCHGRABER.
• Court: Missouri Supreme Court

85 S.W. 868

186 Mo. 633

STARK et al. v. KIRCHGRABER.

Supreme Court of Missouri, Division No. 2.

February 21, 1905.

DEED — HUSBAND TO WIFE — ESTATE CREATED — TERMINATION OF TRUST — SALE OF DECEDENT'S LAND — WHO MAY MAKE APPLICATION — JUDGMENT — COLLATERAL ATTACK — REVIEW.

1. A deed of real estate by a husband to his wife creates in the wife an equitable separate estate, the husband retaining the legal estate in trust for her.

2. Though the legal title to land remains in the husband as trustee, notwithstanding a deed thereof by him to his wife, this title, on the death of the wife, merges in the equitable title held by her, and vests in her heirs; hence a subsequent deed by the husband conveys no title.

3. The purchaser of the interest of an heir to land owned by a decedent has not such an interest in the land as entitles him to apply for a sale thereof for the payment of debts under Rev. St. 1899, § 150, providing that such application may be made by any creditor "or other person interested in the estate."

4. The validity of proceedings in the probate court for the sale of a decedent's land may be attacked in a collateral action to quiet title where the record of those proceedings shows that the court was without jurisdiction because the application for the sale therein was not made by a "creditor or other person interested in the estate," as required by Rev. St. 1899, § 150.

5. Where the judgment of a trial court is right, it is immaterial on review on what particular theory the result was reached.

Appeal from Circuit Court, Greene County; Jas. T. Neville, Judge.

Action to quiet title by Maud L. Stark and others against Lizzie Kirchgraber. From a judgment for plaintiffs, defendant appeals. Affirmed.

This cause is here upon appeal from the Greene county circuit court. On the 24th day of February, A. D. 1901, the respondents, as plaintiffs, filed in the circuit court of Greene county, Mo., their petition in the above-entitled cause, which said petition, omitting caption and style of case, is as follows: "Come now the plaintiffs, and say that they are the children of Sandy and Hulda Jarrett, deceased, and that at the time of the death of the said Hulda Jarrett she was the owner in fee simple of four acres of land off of the west end of the N. ½ of the N. W. fractional ¼ of section 7, township 29, and range 21, said four acres being on the south side of the one-acre tract sold to Robert Stokes, and recorded in Book 67, at page 475, and lying and being in Greene county, Missouri. And they further state that each owns at this time one-sixth interest in said land by virtue of being the heirs at law of Hulda Jarrett, deceased. They further state they are informed and believe the defendant claims some interest in said land. They pray the court to ascertain and determine the estate, title, and interest of said parties, respectively, in such real estate, and to define and adjudge by its judgment or decree the title, estate, and interest of the parties in said property."

To this petition the following answer was filed: "Now comes the defendant in the above-styled cause, and by leave of court for her amended answer to plaintiffs' petition admits that she claims an interest in the land therein described, to wit, the fee-simple title, and further avers and states that she is the owner of the fee-simple title in said land; that she is in possession thereof, and denies each and every other allegation therein contained."

Upon the trial of this cause it was admitted that Sandy Jarrett was the common source of title. The facts as shown by the testimony, including the documentary evidence introduced, are as follows: "Sandy and Hulda Jarrett were husband and wife. Prior to February 21, 1888, Sandy had acquired the fee-simple title to the land described in the petition, and on said date he signed and acknowledged a deed purporting on its face to convey said land to his wife, Hulda. Hulda died October 2, 1890, leaving her husband, Sandy, and six children, to wit, E. W. (Elias) Jarrett, Ona McCullah, Henry Jarrett, Ida Frost, Maud Stark, and Grace Jarrett. The last-named is not a party to this action. Sandy died November 3, 1900. On April 27, 1893, E. W. (Elias) Jarrett executed a deed conveying to S. C. Haseltine his interest in said land. On September 28, 1893, Sandy Jarrett, with S. C. and Emma L. Haseltine, executed a warranty deed conveying said land to L. K. Haseltine. On September 17, 1896, L. K. Haseltine conveyed his interest, which included the interests of Sandy and E. W. Jarrett in said land, to Joseph Kirchgraber. Ona McCullah executed a deed of trust on said land, and thereafter the same was foreclosed, and on October 16, 1896, a trustee's deed was executed conveying the interest of Ona McCullah to Joseph Kirchgraber. Thereafter Joseph Kirchgraber died, leaving said land to his widow, Lizzie Kirchgraber, the defendant."

The record is silent as to the date of grant of letters of administration on the estate of Hulda Jarrett, deceased; but it does appear that W. H. Pipkin was the former administrator of said estate, and turned over $27.75 to said Jarrett, husband of the deceased, by order of the probate court. This was the last heard of that administration, so far as the record discloses, until this appellant, who is neither an heir nor a creditor of said estate, commenced the proceedings in the probate court to sell the real estate. The first step taken in the probate court to sell this real estate was by this respondent. She gave the following notice to the administrator of the estate of Hulda Jarrett, deceased: "To A. N. Foss, administrator of the estate of Huldy Jarrett, deceased: You are hereby notified that on April 20th, 1897, I will file a motion in the Probate Court in and for Greene county, Missouri, asking to sell at public auction the following described real estate, to wit: Four acres of land off of the west end of the following described land, to wit: Four acres on the west end of the north ½ of the N. W. fractional ¼ of section 7, township 29, range 21, Greene county, Missouri. Said four acres being on the south side of the one acre sold to Robert Stokes, and recorded in book 67, page 495, in the recorder's office in Greene county, Missouri."

After the service of such notice upon the administrator, the appellant in this cause presented to the probate court the following petition: "In the Matter of the Estate of Hulda Jarrett, Deceased, A. N. Foss, Administrator. Now comes Lizzie Kirchgraber, an interested party in the estate of the said Hulda Jarrett, deceased, come and pray the honorable probate court of said county to order a sale of the real estate of the said Hulda Jarrett, deceased, at public auction, and state to the court that the administrator has sold the personal estate of the deceased as appears by the sale bill already filed, and of said personal estate, goods, and chattels, and payment of debts for said estate as follows, to wit, sufficient to pay the debts of the deceased without selling the whole, the real estate mentioned, as follows: Four acres of land off of the west end of the following described land, to wit, four acres on the west end of the north half of the N. W. fractional ¼ of section 7, township 29, range 21, Greene county, Missouri; said four acres being on the south side of the one acre sold to Robert Stokes. Recorded in Book 67, page 495. It is further stated by said Lizzie Kirchgraber that there is a large amount of taxes due on said land, and has been sued for; and, further, that the estate has been in the hands of the public administrator for more than five years, and should be settled up; and she recommends that the same be sold for the payment of the debts due by the deceased, or so much of said real estate as may be sufficient for that purpose, at public auction. All of which is respectfully submitted."

Upon the foregoing petition, the probate court made the following order: "In the Probate Court, within and for Greene county, Missouri, May Term, 1897. A. N. Foss in charge, Administrator of the Estate of Hulda Jarrett, Deceased. Now on this day comes Lizzie Kirchgraber, an interested party in the estate of Hulda Jarrett, deceased, and presents to the court her petition praying for an order for the sale of so much of the real estate of said deceased at public auction as will pay and satisfy the remaining debts due by said estate and yet unpaid for want of sufficient assets, accompanied by the accounts, lists, and inventories required by law in such cases. On examination thereof it is ordered that all persons interested in the estate of said deceased be notified that application as aforesaid has been made, and that, unless the contrary be shown on or before the first day of the next term of this court, to be held on the second Monday of August next, an order will be made for sale of the whole, or so much of the real estate of said deceased at public auction as will be sufficient for the payment of said debts; and it is further ordered that this notice be published in some newspaper in this county for four weeks before the next term of this court. And the court, finding that Hulda Jarrett, Maud Jarrett, Ida Jarrett, Grace Jarrett, Elias W. Jarrett, and Mary O. McCullah are heirs of the estate of said deceased, and that they are residents of this county, orders that they each be served with a copy of this notice at least ten days before said next term of this court."

The administrator, upon being notified that appellant would make application to the probate court for the sale of this land in pursuance of section 151, Rev. St. 1899, filed with the clerk of the court accounts, lists, and inventories, as provided by that section, and the order of sale was made upon the application of the respondent, in pursuance of the provisions of section 150, Rev. St. 1899, and the land was sold, and the respondent became the purchaser. Report of sale was made and...