Young v. Downey

• Decision Date: 28 June 1898
• Citation: 46 S.W. 1086,145 Mo. 250
• Parties: YOUNG v. DOWNEY et al.
• Court: Missouri Supreme Court

46 S.W. 1086

145 Mo. 250

YOUNG v. DOWNEY et al.

Supreme Court of Missouri, Division No. 2.

June 28, 1898.

PROBATE PRACTICE — SALE OF DECEDENT'S LAND — NOTICE — SUFFICIENCY.

1. Where an order of sale of decedent's land by the probate court, order approving the sale, and the deed from the clerk of that court, are exhibited, it will be presumed, until the contrary is shown, that all antecedent steps requisite to the sale were taken.

2. Under Gen. St. 1865, p. 498, § 25, providing that a notice to show cause why a decedent's land should not be sold shall be published four weeks before the term of court at which the order of sale will be made, a notice published September 8th for the first time is not sufficient to give the court jurisdiction at a term beginning October 2d.

Appeal from circuit court, Platte county; W. H. Roney, Special Judge.

Action by Stephen Leo Young, by his guardian, John W. Young, against John M. Downey and another. From a judgment of nonsuit, plaintiff appeals. Reversed.

Jas. W. Boyd and Benj. Phillip, for appellant. Jas. W. Coburn, for respondents.

BURGESS, J.

This is ejectment for the possession of several tracts of land, all alleged to be in the possession of the defendants. The petition is in the usual form. The defendants filed answer, the effect of which was to deny plaintiff's right to recover possession of the land, and to allege the sale and purchase of it by defendant Downey, at administrator's sale, where it was sold for the payment of debts against the estate of William H. Downey, deceased, by order of the probate court of Platte county, Mo., at which said sale the defendant Downey became the purchaser, paid the purchase price, and received a deed therefor. Plaintiff filed reply, denying all new matter set up in the answer, and alleging that all proceedings in the probate court in regard to the sale of the interest of William H. Downey of which defendant Downey became the purchaser were null and void, and that defendants had received the rents and profits thereof since the administrator's sale, and asking that an accounting be had, etc. In 1876, one William H. Downey died, intestate, owning an undivided one-fourth interest in the land involved in this litigation. The defendant William Rees owned an undivided one-half of said lands, and the defendant John M. Downey the remaining undivided one-fourth. At the time of his death, William H. Downey left, surviving him, his widow, Angelina Downey, and an infant child, Louis Downey, his only heir. The defendant John M. Downey qualified as the administrator of the estate. A few months afterwards, at the July term, 1876, of the probate court of Platte county, Mo., the administrator filed his petition therein, setting forth the fact that the personal property was insufficient to pay the debts of the estate, and praying for an order authorizing him to sell the undivided one-fourth interest of his decedent in the land in question. On the 4th day of September, 1876, the probate court made an order that all persons interested in the estate of William H. Downey, deceased, be notified by publication that unless they appeared on the first day of the next (October) term of said court, the 2d day of October, 1876, and made it appear to the contrary, an order for the sale of the undivided one-fourth interest of the said William H. Downey, deceased, in said lands, would be made for the payment of his debts. Notice was published in the "Western Commercial," a weekly newspaper, in four issues of that paper, viz. the first insertion appeared September 8th, the second September 15th, the third September 22d, and the fourth September 29th. The first day of the October term, 1876, of the probate court of Platte county, Mo., was the 2d day of October, so that the first publication of said notice was made only 24 days before the first day of said October term of said court. On the first day of October term, Angelina Downey, the widow, appeared, and, in writing, objected to any order being made for the sale of said lands until her interest in the same should be ascertained and set apart and her homestead assigned to her, and requested that the court suspend all proceedings upon the petition of the administrator until the land was divided and her homestead assigned to her. At the time these objections were made, Angelina Downey was not curator of her infant child, Louis Downey, she being appointed as such seven days later, on the 9th of October, 1876. On the 27th day of October, and at the October term, 1876, the court sustained the widow's objections, and made an order that all further proceedings in the application of the administrator for the sale of his decedent's land for the payment of his debts be suspended until the further order of the court, and until the rights of the widow in the real estate were determined. The widow, on the 6th day of December, 1876, for herself, and as curator for her minor child, brought suit in partition in the probate court (which at that time had jurisdiction in partition) against defendants John Downey and William Rees, praying for division of the lands owned by them in common, according to their respective interests. At the January term, 1877, an interlocutory decree was entered; and at the April term a final decree in partition was made, by which said lands were divided, and the lands in controversy in this case were set off to Louis Downey, as his property; the dower of the widow being assigned to her out of a part of the lands set off to Louis Downey, and described by metes and bounds as follows, to wit: "Beginning at the southeast corner of the southeast quarter of said section 13; thence north, with range line (37), to a stone on said range line, 12.50 chains, north of quarter-section corner of section 13; thence west 16.37½ chains, to the right of way to the K. C., St. Joe & Council Bluffs Railroad; thence, with east line of same, to quarter-section line running east and west through the center of section 13; thence west, with said quarter-section line, 1.75 chains, to the west side of right of way of said railroad; thence, with the west side thereof, south, 26½ degrees east, .65 chains, to a stone in the center of ditch; thence south, 68½ degrees west, 10.20 chains, to a stone in center of said ditch; thence south 35.50 chains, to a stone under the bank of Missouri river; thence east (estimating to bank of said river) 21 chains, to the beginning, — containing 90.50 acres, more or less, being 63.25 acres, more or less, of bottom land, and 27.25 acres, more or less, of bluff or timber land." The remainder of land was set off to the defendants jointly. The widow afterwards intermarried with James W. Young. Two children were born of this marriage, one named Myrtle, who died when she was 13 months old, and Stephen Leo Young, plaintiff in this suit. The widow died in August, 1881. Louis Downey died in June, 1895, aged 20, leaving his half brother, the plaintiff, a minor, his sole heir at law, who, as such,...