Williams v. Mitchell

• Decision Date: 28 November 1892
• Parties: Williams et al., Plaintiffs in Error, v. Mitchell
• Court: Missouri Supreme Court

20 S.W. 647

112 Mo. 300

Williams et al., Plaintiffs in Error, v. Mitchell

Supreme Court of Missouri, First Division

November 28, 1892

Appeal from Greene Circuit Court. -- Hon. W. D. Hubbard, Judge.

Ejectment for land in the city of Springfield; action brought February 1889. James T. Williams is the common source of title, and plaintiffs are either his devisees, or else in one respect he represents them in this action.

At the outset of the trial certain matters were settled by an agreed statement of facts as follows:

"Third. That James T. Williams died in December, 1846, testate leaving the following children: Mary, Ellen, Tully and Virginia and his widow, Louisa Williams.

"Fourth. That said Louisa Williams, widow, married John T. Staples on August 23, 1849, and that she died in March, 1887; that Staples, the husband aforesaid, died December 28, 1886.

"Fifth. That Mary Williams, aforesaid, married November 23, 1856, to one William B. Crayne, and she died in 1881, leaving one child, Mary, who married Samuel W. Church, and her interest in the land has been conveyed to Mrs. Ellen Clusky in 1888.

"Sixth. That Ellen Clusky, formerly Ellen Williams, aforesaid intermarried with Henry Clusky in 1860, and is now alive, as is her husband.

"Seventh. That Virginia Williams, aforesaid, died in infancy in 1847 or 1848, and without issue.

"Eighth. That Tully Williams is still alive, aged about fifty years.

"Ninth. That William B. Crayne, aforesaid, died before the beginning of this suit."

Other facts admitted will be stated further on.

In 1846 William sold ten acres of land which embraces that which is in controversy to Joseph Burden, and executed to him a title bond dated April 23 of that year, formal in all its parts and reciting that Burden had executed his promissory note of that date for the sum of $ 75, as the purchase price of the land said note being due October 23, 1847. Williams died in December, 1846, and the executors appointed by his will qualified and entered upon their duties as such in January, 1847. On purchasing the land described in the title bond, Burden entered into the possession of it, and he and those claiming under him have been in "actual and continuous" possession as the owners thereof ever since, except a space of three years from 1862 to 1865, when owing to the disturbed condition of the country by reason of the civil war the land remained unoccupied.

The answer of defendant was a general denial and an admission of possession, and then for a further defense pleaded to the effect that Williams had sold the land in question to Burden for $ 75, for which Burden executed his promissory note to Williams, who then delivered to Burden his title bond in usual form, who thereupon entered into possession of the premises, and afterwards sold the land to Kimbrough for $ 100, which the latter paid him, and entered into possession of the land; that afterwards the county court ordered that the executors of Williams execute and deliver to Burden or order a conveyance to the land in controversy, on payment of the purchase money, which said money said Burden paid.

The answer further sets forth that Kimbrough conveyed the land to Berry, and that the title to the land has since that period come down to defendant by a regular chain of conveyances. The answer then asks for divestiture of the title and for general relief.

The replication of the plaintiffs was a general denial.

On the trial before the circuit judge, without the intervention of a jury, it was admitted that the title bond had been executed by Williams to Burden; that Burden entered into possession of the land at the time, and the actual and continuous possession of the land by him and those claiming under him all as aforesaid.

In support of the plea of payment of the purchase money, it was shown by the probate records that the will of James T. Williams was exhibited in court, and the proof of the same which had been taken in vacation was adjudged sufficient, and the same ordered to be recorded, the executors appointed by the will entered upon the discharge of their duties, and that their bond as such was approved on January 8, 1847, and their inventory filed and approved.

The defendant then offered and read in evidence over plaintiffs' objection from the same record of date, July 7, 1847, the following entries:

"This day was exhibited a bond executed by one James T. Williams in his lifetime binding himself to make a title to the following described tract of land, to-wit, giving description as in the title bond.

The premises being fully understood, it is considered by the court that the interest of the estate requires a specific performance on the part of the deceased by said contract.

It is, therefore, ordered by the court that the executors of said estate, upon the payment of the purchase money, make and execute to said Joseph Burden, or order, a good and lawful deed of conveyance for the said ten acres of land above described."

The objections were that the record did not show specific performance, and that it is manifest on the face of the order that the probate court had no jurisdiction over the subject-matter or the parties.

The defendant then offered in evidence the probate record of the same date as last aforesaid as follows:

"Joseph Burden v. "Estate of J. T. Williams] Account filed $ 24.43 3-4.

"This day comes the plaintiff in this cause, the administration of said estate being also present, the necessity of a notice being waived, the proof heard and the premises fully understood, the court do find that the said estate owes the said plaintiff the sum of $ 24.43 3-4. It is, therefore, considered that said plaintiff recover of said estate the aforesaid sum of $ 24.43 3-4 together with his costs in this behalf expended, placed on the fifth class."

Objection was made to this record that the same was immaterial and irrelevant. It was then admitted that the first inventory of the estate of Williams showed a note against Joseph Burden for $ 75, dated April 23, 1846.

The probate record also showed that a settlement was made September 4, 1848, by John B. Cecil, one of the executors of the will of Williams. Those records also showed that one Maurice had been appointed administrator de bonis non, and that on the eighth day of March, 1850, he showed to the court that nothing had come into his hands as such, and thereupon he was permitted to resign, his letters were revoked and Wm. C. Price was appointed administrator de bonis non in his stead in the same year, who thereupon gave bond as such.

The probate court records also showed that on the fourth day of June, 1850, a judgment of allowance was entered against the estate of Williams, and in favor of N. R. Smith for $ 753.53, and the testimony shows this judgment was never paid. The testimony also showed that the title bond in question was afterwards found among the files of the probate court and seen there but a short time before the trial of this cause, but a careful search failed to discover among those files Burden's note for $ 75. There was also testimony showing that John S. Kimbrough bought the land of Burden in 1846, for a value of $ 100, paid the same and cultivated the land entered upon for some five years, when he sold it to D. D. Berry, and conveyed it to him by a deed dated August 13, 1851.

It was admitted that there was a regular chain of title based upon a valuable consideration from Kimbrough down to the defendant. Kimbrough could not tell whether he had ever received a deed to the land from Burden, nor does it appear that the latter ever assigned the title-bond to the former.

Upon this evidence, after giving and refusing several declarations of law, the court found in favor of the defendant, and entered a judgment in his behalf in ordinary form.

Affirmed.

Wm. R Hudson and Wm. O. Mead for plaintiffs in error.

(1) The court erred in admitting in evidence the probate record of allowance in favor of Burden against the estate of Williams for $ 24.43, as it was not admissible for any purpose -- not even a circumstance going to show payment of the purchase money for the land. Dunmea v. Thomas, 15 Mo. 385. (2) The court erred in admitting in evidence the probate record of an allowance against the estate of Williams in favor of Smith for $ 765. (3) The court erred in admitting in evidence the settlement of John B. Cecil, executor of the estate of James T. Williams, deceased. (4) The court erred in admitting in evidence the letters of administration granted to William C. Price. (5) The court erred in admitting in evidence what purported to be an order of the county court for the specific performance of the contract of sale from Williams to Burden, for the reason that it is manifest the court had no jurisdiction, neither Burden nor the executors appearing to have been before the court, and the purchase money appearing then not to have been paid. Revised Statutes 1845, secs. 36-40, p. 88. (6) The court erred in refusing the declaration of law asked by plaintiffs, number 3, for the reason that the grantees of Burden could occupy no better position in relation to the title than Burden. (7) The court erred in refusing the declaration of law asked by plaintiffs, number 4; the note appended to this declaration by the trial court is conclusive of its correctness. Brown v. Brown, 33 N.J.Eq. 658; Revised Statutes, 1889, sec. 5186; Revised Statutes, 1845, sec. 1, p. 529. (8) The court erred in refusing the declaration of law asked by the plaintiffs, number 5; while the court below refused this declaration it also refused a counter declaration asked by defendant. Tyler on Ejectment, pp. 565, 876-880; Sedgwick & Wait on the Trial of Title to Land, secs. 165, 751; Tiedeman on...