Throckmorton v. Pence

• Decision Date: 13 March 1894
• Citation: 25 S.W. 843,121 Mo. 50
• Parties: Throckmorton, Appellant, v. Pence
• Court: Missouri Supreme Court

25 S.W. 843

121 Mo. 50

Throckmorton, Appellant, v. Pence

Supreme Court of Missouri, Second Division

March 13, 1894

Appeal from Platte Circuit Court. -- Hon. James M. Sandusky, Judge.

Reversed and remanded.

James W. Boyd and Ben. Phillip for appellant.

(1) A purchaser at an administrator's sale buys at his peril. If he obtains no title, because the deceased had no title, he loses his money. It is only where the deceased had a title to the property purchased, and the purchaser fails to obtain it by reason of some omission or irregularity in the proceedings, and has paid the purchase price, that he is entitled to an accounting. Tiedeman on Sales, p. 452, note 4; Bartlett v. Glasscock, 4 Mo. 70; Cashion v Faina, 47 Mo. 133; Estes v. Alexander, 90 Mo 453. (2) The interest in the land recovered by the plaintiff was never sold by the administrator, and consequently plaintiff can not be required to account. (3) The answer does not allege facts authorizing an accounting, nor is any accounting asked for therein, nor does the evidence in the case authorize an accounting. (4) The defendant tried this case on the theory, as shown by the instruction asked by him that the legal title to the land was in plaintiff, claiming that her failure to pay back the purchase money was a legal defense. The court having decided and the defendant having admitted that the legal title was in the plaintiff, the defendant is committed to that theory, and the only question for this court to determine, is whether there should be an accounting. Whitemore v. Lodge, 100 Mo. 36; Harris v. Hays, 53 Mo. 90; McGonigle v. Dougherty, 71 Mo. 259; Bank v. Hammerslough, 72 Mo. 274; Smith v. Culligan, 74 Mo. 387; 91 Mo. 628; Bates v. McGoon, 85 Mo. 580; Noble v. Blount, 77 Mo. 235; Holmes v. Braidwood, 82 Mo. 610; Reilly v. Railroad, 94 Mo. 600. (5) Aside from the defendant's theory and admission that plaintiff has the legal title to the property, the circuit court was clearly right in holding that plaintiff was the owner of the land: First, because the partition proceedings were a nullity. There was no community of interests to sever, nor could the suit be brought against the administrator. Gen. Stat. 1865, p. 611, sec. 1; Mason v. Willard, 2 Mass. 478; Freeman on Cotenancy and Partition, 454; 17 Am. and Eng. Encyclopedia of Law, p. 681 and note 6. Second, because, even if the partition proceedings were valid, plaintiff is still the owner of one-half of said land. The administrator's deed conveyed only the interest which James W. Reese owned in said land at the time of his death, and the administrator under the law could sell only such interest. Reese, at the time of his death, only owned an undivided half of the property, and this was all that was sold. The other undivided part that was not sold belongs to plaintiff as his only heir at law. Gen. Stat. Mo. 1865, p. 499, sec. 35. (6) Nor should the question of adverse possession have been submitted to the jury: First, because there is no evidence on which to base an instruction on that theory. Rodney v. McLaughlin, 97 Mo. 426. Second, and therefore it would have been error to have submitted such a theory to the jury. State v. Tice, 90 Mo. 112; Miller v. Railroad, 90 Mo. 389. Third, because it is admitted that plaintiff is and was a married woman long before the administrator's sale of the land, and the statute does not run against her. R. S. 1889, sec. 6767; Ashley v. Rockwell, 2 N.E. (Ohio) 437; Fitzsimmons v. Johnson, 17 S.W. 100; Wilson v. Wilson, 36 Cal. 447; Clark v. McCann, 18 Hun (N. Y.), 13; Ulsup v. Jordan, 69 Tex. 300; Hurlbert v. Wade, 40 Ohio St. 603; North v. James, 61 Miss. 761; Campbell v. Carter, 95 N.C. 156; Lippard v. Troutman, 72 N.C. 551; Manker v. Faulhaber, 94 Mo. 430; R. S. Mo. 1889, sec. 6869. (7) There is no estoppel in this case for the following reasons: Plaintiff was a married woman and could not be estopped. Crenshaw v. Creek, 52 Mo. 98; Hempstead v. Easton, 33 Mo. 142; Thompson v. Reno, 12 Mo. 157; Glidden v. Struppler, 52 Pa. St. 400. The decree of partition was not only irregular, but absolutely void. "Where a judgment is absolutely void it has no effect by way of estoppel or for any other purpose." 2 Black on Judgments, sec. 513; Miller v. Barkeloo, 8 Ark. 318; Agnew v. Adams, 26 S.C. 101; 1 S.E. 414; Dunklin v. Wilson, 64 Ala. 162; Hancock v. Flynn, 8 N.Y.S. 133; Gage v. Hall, 43 Barb. 44. (9) There is no estoppel set up in the answer and it must be pleaded to be effectual. Bray v. Marshall, 75 Mo. 327; 7 Am. and Eng. Encyclopedia of Law, note 5, p. 33.

John Doniphan and Jas. W. Coburn for respondent.

(1) The administrator was a proper party to the partition suit. Gen. Stat. 1865, p. 611, sec. 4; Ibid. p. 493, sec. 49; Lewis v. Carson, 93 Mo. 561. (2) The administrator of a deceased beneficiary in a deed of trust must be made a party to a suit in partition. Harbison v. Sanford, 90 Mo. 481; Parkinson v. Caplinger, 65 Mo. 293; Yates v. Johnson, 87 Mo. 216. See, also, Scott v. Guernsey, 48 N.Y. 106; Page v. Webster, 8 Mich. 263; Marshall v. Marshall, 5 S. Rep. 478. (3) The partition proceeding is binding on plaintiff, she having voluntarily joined as plaintiff therein; by so doing she waived her claim to the land sold for the payment of the debts of her father. A judgment in partition is as conclusive as any other judgment. Hart v. Steedman, 98 Mo. 452; Smith v. Patterson, 95 Mo. 530. (4) The statute of limitations is a bar to this suit. Plaintiff's husband having abandoned her twelve or fourteen years ago she was not exempt from the bar of the statute of limitations. See Phelps v. Walker, 78 Mo. 320; Geisen v. Herderich, 104 Ill. 537; Brown v. Cousens, 51 Me. 301; Dunham v. Savage, 52 N.Y. 230. (5) Appellant permitted the land as partitioned to be sold for the payment of the debts of her father's estate. For her interest in the land that was sold, she received an equivalent interest, belonging to her father in the land she now occupies under the partition. She accepted the balance of the money arising from the sale of the land assigned to her father's estate after the payment of the debts. Having received the money, she is estopped to claim the land. McClanahan v. West, 100 Mo. 323; Austin v. Loring, 63 Mo. 19; Nanson v. Jacob, 93 Mo. 346; Chase v. Williams, 74 Mo. 437; Wilcoxon v. Osborn, 77 Mo. 329. (6) The supreme court views with disfavor suits to set aside partition sales instituted nearly the life of a generation after the occurrence of the transactions in question. McClanahan v. West, 100 Mo. 324.

OPINION

Burgess, J.

Ejectment for fifty-eight and twenty-two hundredths acres of land off the west side of the southeast fractional quarter of section 29, township 34, range 35, in Platte county. The petition is in the usual form. The answer, aside from being a general denial, alleges that defendant is the owner of the land sued for, having bought the same for value from one George Gabbert, who bought it at a sale by the administrator of the estate of James W. Reese, deceased, and that the purchase money paid by Gabbert for said land, amounting to $ 1,280.84, was applied to the payment of the debts of the deceased; and a plea of the statute of limitations. To the answer plaintiff made reply.

The facts disclosed by the record are about as follows: In 1845, James W. Reese, plaintiff's father, and his sister, Barbara Ann Reed, were the owners in common of a tract of land of which the land in suit was a part. In 1846 Barbara Ann Reed conveyed her interest in the land to plaintiff and her sister Mary Ellen Reese and to the survivor of them during her natural life, then to the heirs of her body. Mary Ellen Reese died in 1860, without issue, leaving James W. Reese the owner of one undivided interest in said land, the other interest being owned by plaintiff for life, with remainder to her children in fee. James W. Reese died in 1863, leaving as his heirs his widow and his only child, the plaintiff. Reese's widow qualified as his administratrix, but she shortly afterwards died, and W. F. Yocum was appointed as administrator of his estate; and Thomas H. Talbott qualified as the administrator of the widow's estate.

In 1869 plaintiff, with her husband, Thomas Throckmorton, and her children by her former husband, viz., James W. Moore, Madie P. Moore and William J. D. Moore, minors, by their guardian William Moore, instituted suit in the Platte county probate court against Thomas H. Talbott, administrator of Nancy Reese, and William F. Yocum, administrator of James W. Reese, for the partition of the said tract of land, praying that the interest she held for life under the deed from Barbara Ann Reed, in which her children held the remainder in fee at her death, be set off from that interest in the land belonging to the estate of James W. Reese, subject to the debts of the estate. Decree was duly rendered in accordance with the prayer of the petition. The commissioners set apart to plaintiff and her children their portion, and to the heirs of James W. Reese the land in controversy, and their report was duly confirmed in 1875.

In 1876 the administrator of the estate of James W. Reese applied to the Platte county probate court for an order for the sale of the real estate of James W. Reese, including the land so above set off in partition to his heirs, the same land in controversy here, for the payment of the debts of the estate. The order was duly and legally granted. On April 11, 1876, the said land was sold, George Gabbert becoming the purchaser for the price of $ 1,280.84, and a deed was made to him therefor. The proceeds of the land sale were applied to the payment of the debts of James W. Reese. Shortly thereafter Gabbert for value sold and conveyed the land in controversy to defendant Joseph...