Ousler v. Robinson

Riddick, J. (after stating the facts). This is an action of ejectment by David N. Ousler and other heirs of David K. Ousler, deceased,, to recover 160 acres of land which was owned and occupied by him at his death. The defendants claim the land under a sale and conveyance made by the administratrix of the estate of Ousler, and also, as to half of the land, under a sale made by virtue of an overdue tax decree. The evidence tends to show that the land was the homestead of Oysler, and after his death became the homestead of his widow and children. On this account it is contended that the sale by the administratrix was void, but we need not notice that point, for an inspection of the order made by probate court for the sale of the land shows clearly that it did not direct or authorize the administratrix to sell the land that was set aside for dower, or the reversionary interest of the heirs therein. The order recites that after assignment of dower there would remain 320 acres of land subject to sale for the payment of debts, and then directs that, after the dower is set apart, the lands be appraised and sold. Taking the whole 'of the order into consideration, it is clear that the administratrix was only authorized to sell the 320 acres of land remaining after the assignment of dower. The administratrix, it seems, attempted to sell the reversionary interest of the heirs in the dower land, but she had no authority to do so. The sale was never confirmed until after the commencement of this action, and the heirs appealed from the order confirming it. We think the order of the chancellor confirming that portion of the sale should not be sustained, and that the title of the, heirs to the 160 acres in controversy, which had been set apart to their mother as dower, was not affected by this attempted sale of the reversion, and that the defense based thereon must fail. As to the 80 acres which defendants claim under the overdue tax decree, it is said that the decree was never confirmed. Now, it is not absolutely necessary that the confirmation should appear by a formal order to that effect. “It is sufficient if the confirmation can be gathered from the whole record.” 17 Am. & Eng. Enc. Law (2d Ed.), 991, 992. But there appears to have been a regular and formal confirmation of the sale of the lands under the overdue tax decree, which order of confirmation was made in 1888. In addition to this order, to which we see no valid objection, the record shows that in 1886 the commissioner who'made the sale appeared in court and acknowledged the deed set up by the defendants, and the court ordered that a copy of the order of acknowledgment be indorsed on the deed, and certified by the clerk of the court, “to the end that the same may be entitled to record,” and further directed that a writ of possession issue on demand of the purchasers. This also tends to show that the court approved the sale; otherwise it would not 'have ordered a writ of possession. But we need not discuss that question further, for, as we have stated, the record here shows a formal order confirming the sale. Again, it is said that the defendant Robinson was in possession of the land at the time the taxes for which the land was sold accrued, and should have paid them, and that he could not strengthen his title by purchase at a sale for taxes brought about by his own default. But the record does not sustain this contention, or show that Robinson was in possession of the land at the time the taxes accrued. Taking tlie record as we have it here, there is nothing to show that- the sale under the overdue tax decree was invalid. As to the statute of limitations, we think that the right of action did not accrue until the death of the mother of plaintiff and the termination of her life estate in the land which had been purchased by Mary E. Robinson and held by- defendants after her death. As, this action was commenced within less than two years after the termination of this life estate, it follows that it was not barred by limitation. • On the whole case, the judgment of the chancellor as to the 80 acres held by defendants under the overdue tax decree will be affirmed; but the judgment as to the remaining 80 acres will be reversed, and the cause remanded, with an order that a decree therefor be rendered in favor of plaintiffs, with such judgment for rents and profits as the evidence may demand.