Wilkerson v. Allen

• Decision Date: 30 April 1878
• Parties: WILKERSON v. ALLEN et al., Appellants.
• Court: Missouri Supreme Court

67 Mo. 502

WILKERSON

v.ALLEN et al., Appellants.

Supreme Court of Missouri.

April Term, 1878.

Appeal from Callaway Circuit Court.--HON. G. H. BURCKHARTT, Judge.

G. B. McFarlane, W. Lewis and Thos. N. Musick for appellants.

1. Nesbit could sell upon the individual note of the purchaser; if so, he might sell upon his oral promise to pay, as well. Jarvis v. Russick, 12 Mo. 63; Foster v. Thomas, 1 Am. Law Reg., (O. S.) 565. 2. The report of sale should have been made at the next term of court after such sale. State to use of Perry v. Towl, 48 Mo. 148; Speck v. Wohlien, 22 Mo. 310; Strouse v. Drennan, 41 Mo. 289; Mitchell v. Bliss, 47 Mo. 353; Castleman v. Relfe, 50 Mo. 583; Dulle v. Deimler, 28 Mo. 584. 3. He had no power to make the deed to Bailey, after his failure for six years to comply with the order of sale, without then making payment for the land or even complying with the terms of sale, and after the final settlement was made. Bompart v. Lucas, 21 Mo. 598; Garner v. Tucker, 61 Mo. 427. 4. He could not relieve himself from his duty to sell and convey under the orders of the court, simply and only. He could not take back to himself a mortgage to secure the purchase money of the land, and had no power to make a second sale. Gaines v. Allen, 58 Mo. 537; Reddick v. Gressman, 49 Mo. 389. 5. Nesbit's testimony as to the advertisement of sale under the Bailey mortgage, was no evidence at all. Stephenson v. January, 49 Mo. 465; Thornburg v. Jones, 36 Mo. 514; Stine v. Wilkson, 10 Mo. 75; Powers v. Kueckhoff, 41 Mo. 425; Hambright v. Brockman, 59 Mo. 52. 6. Where husband and wife go into possession of land under a deed to the wife and children, the recognition by the husband of a mortgage upon the land will not estop the wife and children from claiming under such deed or prevent the running of the statute of limitations. Sharp v. Freeman, 45 N. Y. 802; 1 Wash. on Real Prop., (3 Ed.) pp. 141, 425; Gen'l Stat. of 1865, p. 444, § 14.

Boulware & Hockaday for respondent.

1. The fact that Nesbit's deed was made after his final settlement does not effect its validity. He was still administrator. Garner v. Tucker, 61 Mo. 427; Rugle v. Webster, 55 Mo. 246; Mc Vey v. Mc Vey, 51 Mo. 406; Kiley v. Cranor, 51 Mo. 541. 2. There was no such irregularity in the sale that appellants can take advantage of it in this proceeding. 3. The purchase of James G. Allen was made with a full knowledge of the existence of the mortgage by David to Nesbit; the purchase was made subject to this mortgage, and was recognized by him by the payment of $450.00 thereon.

HENRY, J.

At the November term, 1874, plaintiff instituted his suit against James G. Allen to recover possession of sixty acres of land, the north part of the west half of the southwest quarter of section No. 20, township 47, range 9, lying in Callaway county. Pending said suit, said Allen died, and his widow and heirs were substituted as defendants. They answered, admitting that they were in possession, but denying plaintiff's title. A trial was had, resulting in a verdict and judgment for plaintiff, from which defendants have duly prosecuted their appeal. The evidence adduced by plaintiff to prove his title, was: 1. An exemplification of patent No. 996, from the United States to Alexander Scott and W. B. Rule, conveying the southwest quarter of section 20, township 47, range 9, embracing the land sued for. The patent was issued in 1833. 2. A power of attorney from Alex. Scott, one of said patentees, to J. B. D. Valois, empowering him to sell and convey any property, real or personal, belonging to the firm of Scott & Rule, or any interest in, or growing out of, the same, to which said Scott might be entitled in law or equity. 3. The record of a deed from said Valois, as attorney in fact, and said William K. Rule and wife, to Jesse Lindell and George Collier, made in consideration of one dollar, and of the uses and trusts contained in a deed of trust of even date therewith, executed by said Scott & Rule to said Lindell & Collier, conveying said land for the benefit of the creditors of said Scott & Rule, the former confirming said first deed, and authorizing Lindell & Collier to sell the land in such manner, and at such time and place, and for such price as they should deem expedient. 4. The record of a deed from Lindell & Collier to James Allen. 5. Letters of administration on Allen's estate to T. B. Nesbit, dated December 21st, 1854. 6. A petition by said administrator to the county court of Callaway for an order to sell said land for payment of debts of the deceased, filed February 23d, 1856. 7. An order by said court for the sale of the same, on twelve months' credit, and requiring bond and security for the purchase money, made August 7th, 1856. At the October term, 1856, of the circuit court of Callaway county, the administrator sold the land to Isaac Bailey. 8. Report of sale by the administrator to the county court, made at an adjourned term of the November court, held in January, 1857, and the approval of the report by said court. At said sale, Isaac Bailey became the purchaser of the land in dispute, but did not execute a bond with security, and that fact was stated in the administrator's report of the sale. Nesbit made a final settlement of the estate in November, 1861, which showed the estate indebted to him in the sum of $812.56. There was no order discharging him as administrator. On the 7th of August, 1862, he executed and delivered a deed as administrator, conveying said land to said Bailey, who contemporaneously made a mortgage of said land to Nesbit to secure the balance of purchase money which Bailey owed. In 1857 he made a payment on the note, and also one in 1859, but what amount does not appear. The mortgage from Bailey to Nesbit described Nesbit as administrator, and authorized him, in default of payment of the debt, to sell the land at the west courthouse door in the town of Fulton, first giving notice by six written hand-bills, posted in as many public places in said county, twenty days before the sale. On the 24th of March, 1863, Nesbit, in his individual character, conveyed the said land to David Allen, in which deed there was no recital that the advertisement of the sale named the west court-house door as the place where the sale would be made, &c. On the 30th of May, 1863, said D. Allen executed a mortgage, conveying to said Nesbit the land in controversy, together with other lands, to secure certain demands, including the unpaid part of the purchase money for this tract, which said Nesbit had against him, and authorizing said Nesbit, on default made in the payment of said demands, to sell the lands, &c. October 19th, 1874, Nesbit having sold this land under and in pursuance of the terms of said mortgage to the plaintiff, executed a deed conveying to him the said lands. Plaintiff also proved that James Allen, Nesbit's intestate, was in possession of said land from 1842 to 1854. The evidence on the part of defendant tended to prove that James G. Allen, the original defendant herein, went into possession of the land in controversy in the spring of 1863; that he took possession under some arrangement betwixt himself and David Allen. One witness testified that James G. Allen paid said David Allen $1,500 for the land. Mrs. Jones, mother-in-law of James G. Allen, testified that she heard him say that the land had been deeded to his wife and children. Brown, also a witness for defendant, testified that James G. Allen stated to him that Nesbit had a lien on the land for about $900, but that he, Allen, was entitled to a credit of $400; that, in 1873, he had a conversation with said Allen in relation to the deed of trust from David Allen to Nesbit, and at request of said James G. Allen, witness went to see Nesbit to learn what sum was due on the mortgage. James G. Allen told witness he had paid Nesbit $400, which was not credited by Nesbit on the note, and said that he was to pay the note that Nesbit held against David, secured by the deed of trust executed to Nesbit by David Allen. Mrs. Allen, one of the defendants, testified that David Allen told her he had deeded the land to her and her children. In rebuttal, Nesbit testified that he and James G. Allen often talked about the liens on the land, and that he paid said Nesbit $450 on the debt; that witness drew an instrument of writing by which David Allen bound himself to make a deed, conveying the said land to the wife and children of James G. Allen when James should pay off the mortgage. These conversations and transactions occurred while James G. Allen was in possession of the land. Defendants recalled Mrs. Mary Allen, and asked her to state to whom the $450 belonged, which was paid by James G. Allen to Nesbit, in what manner and on what indebtedness, and for whom it was paid. Plaintiff objected and the court sustained the objection.

1. PARTN ERSHIP REAL ESTATE: presumption from lapse of time.

The principal questions are: First, as to the effect of the several conveyances relied upon by plaintiff; and, second, in regard to the statute of limitations relied upon by defendant. There can be no question that the patent from the government vested the title to the land in Scott & Rule. The deed from Rule and wife, and Valois, as attorney in fact of Scott, passed the title of Scott & Rule to Jesse Lindell and George Collier. The land was treated by Scott & Rule as partnership property. It was conveyed by Scott & Rule to Lindell & Collier to secure the partnership indebtedness of Scott & Rule. True, that conveyance was not executed by Scott, in person, but by his attorney in fact, within three months after the execution of the power of attorney, and no complaint having been made by Scott or any one representing him, it is but reasonable, after the lapse of over forty-five years, to presume his acquiescence in the treatment of the land as partnership property. The deed from Lindell & Collier passed the title of said land...