State v. Killian

• Decision Date: 31 October 1872
• Citation: 51 Mo. 80
• Parties: THE STATE OF MISSOURI, Plaintiff in Error, v. JOSEPH C. KILLIAN, Defendant in Error.
• Court: Missouri Supreme Court

51 Mo. 80

THE STATE OF MISSOURI, Plaintiff in Error,

v.JOSEPH C. KILLIAN, Defendant in Error.

Supreme Court of Missouri.

October Term, 1872.

Error to Perry Circuit Court.

B. B. Cahoon, for plaintiff in error.

The information stated facts sufficient to show to the court that the lot had escheated to the State (Wagn. Stat. 584, § 1; id. 586, § 10), and upon the death of Bartholomew Murphy the title to the lot vested in the State. (Farrar v. Dean, 24 Mo. 16.)

Robinson & Clardy, with J. C. Killian, in pro. per., for defendant in error.

It is true that the title to land vests in the State by escheat upon the death of the person last lawfully seized, upon the contingency mentioned in the statute (Wagn. Stat. 585, § I), without inquisition of office found. (Farrar v. Dean, 24 Mo. 16.) But when the State seeks to gain the possession of the property by information, it must aver and prove affirmatively the existence of each of the several conditions or material facts upon which the vestiture of title depends, to-wit: 1, that the person last lawfully seized died without devising the same; 2, that he died, leaving no heirs or representatives capable of inheriting the same; 3, or that the devisees thereof were incapable of holding the same; 4, that there is no owner of the real estate capable of holding the same; 5, that the same has not been sold according to law, within five years after the death of the person last lawfully seized, in payment of debts. (Wagn. Stat. 584, § 1; id. 586, § 10.)

ADAMS, Judge, delivered the opinion of the court.

This was a proceeding under the statute of escheats, to have a certain lot of ground in the town of Perryville, in Perry county, declared the property of the State.

The petition alleges that Bartholomew Murphy was the last person lawfully seized of said lot; that at the time of his death he was an alien, and left no heirs at his death; that he died about the year 1843; that defendant Killian claims said estate and is in possession by his tenant Grebe. There is no allegation in the petition that Murphy died without devising the lot in dispute.

The defendant denies all the material allegations of the petition and sets up a former adjudication which was had after the death of Murphy's wife, who was alleged to have been at that time the last person seized. The court declared that this former adjudication, to which the present defendant Killian was a party defendant, was a bar to this suit, and gave judgment for the defendant.

I am inclined to think, from the record in this case, that the former adjudication was a bar. But without examining this question minutely, I am of the opinion that...