Thompson v. Pinnell

• Decision Date: 29 November 1911
• Citation: 141 S.W. 605,237 Mo. 545
• Parties: A. W. THOMPSON et al. v. W. W. PINNELL, Appellant
• Court: Missouri Supreme Court

141 S.W. 605

237 Mo. 545

A. W. THOMPSON et al. v. W. W. PINNELL, Appellant

Supreme Court of Missouri, First Division

November 29, 1911

Appeal from Cape Girardeau Court of Common Pleas. -- Hon. Benjamin F. Davis, Judge.

Reversed and remanded.

T. J Brown and Ward & Collins for appellant.

(1) The petition does not state facts sufficient to constitute a cause of action in equity and to support the judgment herein. Said petition shows on its face that equity will not lie. Janney v. Spedden, 38 Mo. 402; Holland v Johnson, 80 Mo. 34; Russell v. Lumber Co., 112 Mo. 40; Clark v. Life Ins. Co., 52 Mo. 272; Mason v. Black, 87 Mo. 329; Odle v. Odle, 73 Mo. 289, l. c. 295; Benton County v. Morgan, 163 Mo. 661; Stockton, Ex'r, v. Ranson, 60 Mo. 539; Verdin v. City, 131 Mo. 112. Here plaintiffs pleaded specifically and definitely that the defect of defendant's title appears on the face of the probate record. They do not plead any facts that would require oral testimony or extrinsic evidence, but stand on the broad ground that the sale was void. If the order or judgment is void and the records show it, they plead themselves out of a court of equity. (2) The defendant, as is pleaded in the petition, was in possession of the land, for the petition definitely and specifically pleads "that defendant has received the rents and profits from said real estate since the 13th day of August, 1901;" that being true plaintiffs cannot maintain an action to remove a cloud upon the title unless plaintiffs are in possession. "The party claiming title to land and being out of possession cannot invoke equitable jurisdiction to remove cloud upon title." Davis v. Sloan, 95 Mo. 553; Turner v. Hunter, 225 Mo. 83; Keane v. Kyne, 66 Mo. 216; Clark v. Ins. Co., 52 Mo. 272; Janney v. Spedden, 38 Mo. 395; Beedle v. Mead, 81 Mo. 303; Jewett v. Boardman, 181 Mo. 658; Graves v. Ewart, 99 Mo. 13; Davis v. Sloan, 95 Mo. 552; McRee v. Gardner, 131 Mo. 599. (2) The court erred in its rulings in admitting and rejecting testimony. When defendant undertook to rebut and overthrow the proof made by plaintiff, being the same sort of proof, parol testimony, the court refused to hear it. Defendant offered to show by the sheriff that he actually served notices as required by law upon these very plaintiffs and made return thereof to the probate court, but the court refused to hear this testimony. Plaintiffs had pleaded in their petition that there was no such notice served; they had taken the stand, both sides had conceded that these notices served upon these parties, and the sheriff's return thereon, were not in the archives of the probate court, and an attorney for plaintiffs had testified that he made a thorough examination, he and the judge and the clerk of the probate court, and no order of publication or notice of sale or notice to the heirs could be found; so it was competent for defendant to rebut the proof made by plaintiff and show that these plaintiffs had been in truth and fact duly served with notice as required by law that application would be made to sell this real estate. Desloye v. Tucker, 196 Mo. 603; Bray v. Adams, 114 Mo. 492.

John T. McKay for respondents.

The petition states a good cause of action. Jewett v. Boardman, 181 Mo. 656; Harrington v. Utterback, 57 Mo. 519; Gardener v. Turner, 99 Mo. 523; Brooks v. Owen, 112 Mo. 251; Price v. Springfield Real Estate Co., 101 Mo. 119; Desloge v. Tucker, 114 Mo. 603. The last two cases cited are cited for the purpose of showing the court that the probate judgment is presumptively valid and to further show the court that it is necessary to introduce evidence in order to effect the court's jurisdiction in failing to make the order notifying the heirs and devisees who reside in the county, of the intention to sell the real estate.

BOND, C. Brown, C., concurs.

OPINION

BOND, C. --

This is a suit in equity by the heirs of W. T. Thompson to cancel a deed made by the administratrix of their father's estate in pursuance of an order of sale of certain lands to pay debts.

The petition prays that plaintiffs be declared to be the owners in fee simple of the land described in said deed and that an accounting be taken between them and the defendant, who was the purchaser of said land at the sale by the administratrix.

The equities stated as the ground for relief are that the sale in question was ordered upon a publication imperfect in its terms and without any personal service of notice upon the plaintiff heirs, who resided at the time in the county where the administration was pending.

The defendant answered, admitting the death of W. T. Thompson in 1896; the qualification of his wife as his administratrix; that he was the owner of the land in controversy, and that the same was sold by order of the probate court, which was duly approved, and a valid deed was made and delivered to him by the administratrix; that he bought the same under the proceedings of the probate court, which are in all respects valid and regular; that he paid a full and fair price for the land, made lasting improvements and paid taxes thereon; and that plaintiffs are estopped by their laches to complain of said sale.

The parties stipulated as to the correct description of the land, which comprised about fifty acres; and that the plaintiffs were the three children and the representatives of the fourth child of W. T. Thompson, deceased, and were all of his heirs.

It appears from the records and files of the probate court of Pemiscot county, that at its February term, 1901, the administratrix exhibited as a part of her petition to sell the land for the payment of debts, a settlement of her previous accounts as administratrix to that term of the probate court; that this settlement was signed, and sworn to, and approved by the court. The court then made an order of publication, which was thereafter published for four weeks, and continued the settlement of the administratrix, which had been docketed to its February term, until the May term, 1901. At the latter term the court made an order for the sale of the land, after appraisement, at private sale. The land was appraised at $ 900; it was sold for $ 825 cash; and the administratrix made full report of her acts and doings touching these matters to the August term, 1901, of the probate court. Whereupon, her report was in all things confirmed, and a deed ordered to be made by her to the purchaser. This was done and shows on its face all the recitals required by law in such cases. In the subsequent final settlement of administratrix, the proceeds of this sale were credited to the estate.

Minnie Macklin, one of the plaintiffs and daughter of W. T. Thompson, testified, that she had been married for four years in 1907, the date of the trial; that she lived in Pemiscot county in 1901; that no paper pertaining to said real estate was served on her in that year. On cross-examination she stated: "Q. What is your husband's name? A. Wilber Macklin. . . . Q. Do you know how a sheriff serves a paper on a person? A. No, sir, I never saw a sheriff serve a paper. Q. Did anybody ever give you a paper of any sort or of any kind about that land? A. No, sir. Q. What was it about? A. If there was ever any given, I don't know of it. Q. You don't remember of it? A. No, sir."

Bertie Patrick, also one of the heirs of W. T. Thompson, testified that she was eighteen years of age in 1907 and had been married about one year; that no papers relating to an application to sell the land had been served on her in 1901 in Pemiscot county, where she had also lived. On cross-examination she stated: "Were all of you children minors in the year 1901? A. No, sir. Q. Who of you were adults? A. Horace and Otie. Q. Did you know when this land was to be sold? A. Yes, sir; I knew it was going to be sold. Q. Did you know your mother was going to sell it to Mr. Pinnell? A. I knowed she was going to sell it, but not to whom. Q. Did you know what she was going to get for it? A. No, sir; but I heard her say she got $ 825 for it. Q. You knew that she got $ 825 for it? A. I knew that she said she got it. I did not see the money."

A. W. Thompson, one of the plaintiffs, testified that he was married at the time the land was sold by his mother, the administratrix; that no personal service of notice was made upon him by the then sheriff, McFarland. On cross-examination he further testified: "Q. Did you know your mother was going to get an order of sale for this land? A. I knew she was talking of it. D. Did you object to her doing that? A. No, sir. Q. Were you willing at that (time) that she made that sale order? A. Well, I thought I had nothing to say. Q. You were of age were you not? A. Yes, sir. . . . Q. You do know when this land was sold your father's estate was considerably in debt, don't you? A. It was in debt, some, yes, sir. Q. Were you here at the probate court with your mother when it sold? A. I was not here the day it sold, no, sir. Q. Were you here the day she got the order to sell it? A. I don't remember. Q. Don't you recollect you came with her the day she got the order? A. I came with her but I don't remember anything about the order. Q. Don't you know that as a rule you came with her when she came once a year to make her settlement? A. Some times, yes, sir. Q. You remember she tried to sell this land once, and that some mistake was made, and for that reason she didn't sell it at this particular time, but sold it at a later time? Don't you remember that? A. Yes, I know she came to sell and didn't sell. . . . Q. You say you had no objection to your mother selling this land?" Objected to by counsel for plaintiff. Objection overruled. "Q. You knew all about it? Yes, sir."

Defendant offered to prove by McFarland, who was the sheriff of ...