Wilson v. Wilson
| Decision Date | 03 March 1914 |
| Citation | 164 S.W. 561,255 Mo. 528 |
| Parties | TAYLOR WILSON and ROBERT WILSON v. ISAAC C. WILSON, Appellant |
| Court | Missouri Supreme Court |
Appeal from Dunklin Circuit Court. -- Hon. W. S. C. Walker, Judge.
Reversed and remanded.
Bradley & McKay for appellant.
(1) The homestead could be sold at the time it accrued to the widow and children in 1884, for the payment of debts created during the lifetime of the deceased, subject to the rights of the widow and minor children. Sec. 5439, R.S. 1889. This statute clearly authorizes a sale of the fee to pay debts, subject however, to the rights of the widow and minor children, if any. Anthony v. Rice, 110 Mo. 223; Robins v Boulware, 190 Mo. 41; Keen v. Wyatt, 160 Mo. 1; Bunn v. Lindsay, 95 Mo. 250; Crisp v Crisp, 86 Mo. 630. (2) The judgment is clearly against the law as applied to the evidence in this cause, as the petition and all the evidence show the court had jurisdiction to sell the lands and the sale was legally and fairly made. Defendant pleads laches and estoppel as a special defense to this action. The evidence shows that respondents were minors at the time this sale took place in 1902, that Taylor Wilson was nineteen years old and Robert Wilson was eighteen years old; that Taylor Wilson was twenty-seven, and Robert Wilson twenty-six when this suit was filed; that they knew the land was sold to pay the debts of their deceased father and that their step-father purchased said land and sold the same to their brother, appellant herein, and with full knowledge of all facts connected with the sale, they stood by and saw their brother make valuable and lasting improvements, such as clearing and fencing, and saw the land increase in value from one thousand five hundred dollars to a value of two thousand dollars. They are now barred by their laches, though short of the period of the statute of Limitations. Kroening v. Goehri, 112 Mo. 641; Butler v. Lauson, 72 Mo. 249; White v. Storm, 236 Mo. 491.
W. R. Satterfield, Thomas F. Donaldson and J. P. Tribble for respondents.
(1) Appellant contends that the judgment is for the wrong party. He urges in support of this assignment of error that plaintiffs' petition alleges that the land was the homestead of deceased, W. H. Wilson, and could not be sold for the payment of his debts, subject to the homestead, and that the sale is, for that reason, void; that having alleged this fact, plaintiffs are confined to that one ground of relief. And if in error as to that point, cannot recover at all, no matter how void the sale may have been from other causes. In other words: that it makes no difference if the administrator's sale was void from other causes, yet, if the land could be sold subject to the homestead, the sale must stand, because plaintiffs allege that the land could not be sold subject to the homestead. He strenuously urges that the homestead could be sold, since Wilson died in 1884. Conceding for the sake of argument that appellant is correct as to the right to sell the land subject to the homestead, there is ample evidence to sustain the judgment of the court -- evidence showing that the sale was void on other grounds. The first count of the petition is to determine the title. Appellant evidently overlooks the fact that in suits to determine title the petition need not set out plaintiff's title, nor is the plaintiff required to set out the nature or extent of the defendant's claim of title where its nature is unknown. The petition was sufficient. R.S. 1909, sec. 2535; Huff v. Land Co., 157 Mo. 65. And in such action the court by its judgment or decree may determine the estate and interest of the parties. And the court may determine all rights, claims, interests, of the parties in the land, and grant full and complete relief, whether legal or equitable, with the same force and effect as the court might or could do in any other or different action, and when so rendered shall be as effectual between the parties as if rendered in any other or different or separate action prosecuted therefor. R.S. 1909, sec. 2535; Huff v. Land Co., 157 Mo. 65. The sale was void for the following reasons, aside from any consideration of the homestead laws existing at the time of the death of Wilson. There was no foundation for the order of sale. There was not one valid demand properly allowed against the estate at the time the sale was ordered. The order allowing the demands in favor of R. Peppers and L. P. Peppers had been revoked during the term of court at which they were allowed. The power of the probate court to revoke its orders allowing these demands, during the term of court at which they were made, is beyond question. Scott v. Smith, 133 Mo. 618; Orvis v. Elliott, 65 Mo.App. 90; Martin v. Tobacco Co., 53 Mo.App. 655; Randolph v. Sloan, 58 Mo. 155. While the date of the order revoking these allowances was omitted from the bill of exceptions by oversight, the trial court had the record before him. The order revoking the allowances was in fact made at the same term of court during which they were allowed. The probate court was without jurisdiction to order the sale of the land for the reason that the resident heirs had not been notified of the contemplated sale. This record shows that the proof of publication in the newspaper was made, but is silent as to the service of the notice on the heirs. The heirs were residents of Dunklin county and the order of the court directed that the notice be served upon them. This notice was jurisdictional. R.S. 1909, sec. 153; R.S. 1899, sec. 149; Hill v. Taylor, 99 Mo.App. 526; Young v. Downing, 145 Mo. 250; Patee v. Moore, 59 Mo. 164. The case was tried on the theory, in part, that the resident heirs were not notified, and it was clearly proven that no notice was served on the resident heirs. The witnesses were before the court and the court found that no notice was given. The order of sale, made upon petition of administrator, is at least defective if not void. That part of the order requiring notice to the resident heirs is: "And it is further ordered by the Court that a copy of the record be served on R. Peppers, Mrs. L. P. Peppers, Robert Wilson and Taylor Wilson, heirs to said estate, notifying them that unless they appear and show cause before the next regular term of this court why such order will be made for the sale of whole or so much of the estate as would take to satisfy creditors." The heirs were not to be notified that real estate would be ordered sold if they did not appear, but merely "estate," whether real or personal is not stated. If the notice had been served on plaintiffs, in the form directed by the order of the court, it would not have been sufficient compliance with the statute. The order does not require a notice in regular form served upon the heirs, but merely requires a copy of the record. Furthermore, the requirement is that they appear and show cause "before the first day of the next term of the court," instead of at the next term of the court. If the order had been complied with, and a certified copy of the record served upon the heirs, it would not have met the requirements of the statute, and the court would still have been without jurisdiction to make the order of sale. (2) Appellant contends that plaintiffs had been guilty of laches, and urges that the plaintiffs are estopped from maintaining this action because of their delay, and because of permitting the defendant to make improvements on the land. The plaintiffs brought the suit within the statutory period. Their right to sue did not arise until the death of their mother, less than two years before the suit was filed. She had been dead about three years at the time of the trial. The improvements consisted in clearing six or seven acres of land and appellant had sold timber off the land sufficient to pay for the improvements. Besides, he had received the rents of the land, amounting to $ 855, two-fifths of which properly belonged to plaintiffs. Appellant bought with full knowledge of the conditions surrounding the probate sale. He was one of the heirs, and cannot now plead laches under the circumstances. The plaintiffs never encouraged the appellant to make improvements.
STATEMENT.
W. H. Wilson died in Dunklin county, Missouri, October, 1884, leaving a widow and several children, two of whom are the plaintiffs in the petition hereinafter set forth, and were then under two years of age.
At the time of his death he owned and occupied as a homestead, forty acres of land. His widow remarried the next year and resided on the land until her death in 1907, without issue of her second marriage. Administration was taken out upon his estate in 1902, in the course of which said land was sold for the payment of debts and purchased by the widow and her second husband, who received an administrator's deed for the land in October, 1902.
In 1909 Taylor and Robert Wilson, the youngest of the children of W. H. Wilson, deceased, and then aged twenty-six and twenty-seven years respectively, brought this action against defendant Isaac Wilson, who acquired title to said land by a deed from the purchaser at the time of the administrator's sale.
The petition is in two counts, the first of which needs only be stated since...
To continue reading
Request your trial