Bompart's Administrator v. Lucas

Ryland, Judge, delivered the opinion of the court. This is a petition upon a promissory note, twice assigned; the plaintiff asks payment for the amount of the note, and alleges it to-be in the possession of the defendants agent, H. L. Patterson. In an amended petition, there is alleged the proceedings in the Probate Court, in relation to a compromise between the defendants and Charles Roderman, to whom the note was given ; and that a deed was made accordingly by which the land described therein was conveyed to the defendants, James H. Lucas and Ann L. Hunt. The defendants answer that three minor heirs of Francis Bompart claimed an interest in certain land belonging to the defendants as such heirs, and that defendants agreed to pay them $2000 for their interests if Roderman would procure a conveyance of their interests by proper proceedings in the Probate Court. This was done to quiet the defendants in their title. The following is the receipt which Roderman took from Patterson: “St. Louis, April 11, 1846. Received of Charles Roderman, a note drawn and signed by James H. Lucas and Ann L. Hunt, dated April Bd, 1846, at three years, for two thousand dollars, which note I am instructed to hold until William Phillips, administrator of Francois Bompart, deceased, executes a quit claim deed of relinquishment of the interest of the estate of said deceased, in and to two tracts of land in St. Louis county, which tracts have been recently conveyed by quit claim of Louis Bompart and others to James H. Lucas and AnnL. Hunt. The said deed of Mr. Phillips, administrator as aforesaid, to be in favor of said Lucas & Hunt. (Signed,) H. L. Patterson.” On the trial, the plaintiff read this receipt in evidence; also read the proceedings of the Probate Court, showing that the administrator of Fran<jois Bompart obtained an order to make a deed of all the interest of the estate of said Bompart to the tracts of land referred to ; also read a copy of deed dated 2d [602] March, 1852, made by Louis F. Bompart, as administrator de bonis non of Franpois Bompart, deceased, to James H. Lucas and Ann L. Hunt, which deed was tendered to Lucas, but which he would not receive. It was put in the recorder’s office by Mr. B. A. Hill, the person who tendered it to Lucas, for record, who testified that, after search in said office for the deed, it could not be found ; the copy was then produced and read. This deed does not pretend to convey to Lucas and Hunt the interest and claim of the minor heirs of Bompart, deceased, but only a quit claim for all the interest that the estate of said Bompart had in and to the two tracts of land described, and all the interest which Phillips, as administrator, had therein, and all the interest which Louis F. Bompart, as administrator de bonis non of said Framjois Bompart, deceased, had therein, and all the interest which said William Phillips, as administrator, and which said Louis F. Bompart, as administrator de bonis non, were ordered by the Probate Court to convey. Also, read a quit claim deed from the widow of said Bompart and several of the heirs of said Bompart, not, however, including any person who was authorized or pretended to be authorized to convey the interest of the three minor heirs of Franpois Bompart, to Lucas and Hunt, for the said two tracts of land. The plaintiff also read the will of said Francjois Bompart, by which it appears that he willed the possession of his whole property to his wife during her life, and declared himself willing that she might dispose of it, if in want, by aliening or selling it. The plaintiff then offered to show that in 1846 the widow of Bompart was in needy circumstances ; which proof was rejected, and exceptions taken by plaintiff. The plaintiff then proved that he demanded of Mr. Lucas the money after the deed had been tendered; also demanded the note of Mr. Patterson ; but Lucas refused to pay, and Patterson refused to deliver up the note. This is the substance of the plaintiff’s case. The court instructed the jury that the plaintiff could not recover. Thereupon, the plaintiff took a nonsuit; and afterwards made a mo603 iion to set tbe same aside, which being overruled, he brings the ease here by appeal. This court is of opinion that the court below committed no' error in giving the instruction ; that, from the plaintiff’s own showing, he cannot recover. Now the note in question was to be held by Mr. Patterson until Wm. Phillips, administrator of Francis Bompart, deceased, executed a quit claim deed of relinquishment of the interest of the estate of said deceased, in and to two tracts of land in St. Louis county, which tracts have been recently conveyed by quit claim of Louis Bompart and others to James H. Lucas and Ann L. Hunt; the said deed of Phillips to be to Lucas and Hunt. What is meant by the terms quit claim deed of relinquishment of the interest of the estate of Eramjois Bompart, deceased ? The object of the obligors of the note was to quiet their titles and claim to certain tracts of land in St. Louis county, to which the estate- of Eramjois Bompart laid claim, as was supposed. Now the administrator has the power, under certain circumstances, to sell and convey the real estate of the intestate, and by such sale discharge it from all the interest of the heirs of the intestate. When it becomes necessary to sell real estate to pay debts, and such sales are ordered and proceeded with according to law, the heir’s interest in the real estate so sold, passes under the sale to the vendee. So the estate of a deceased person may, thus far, have an interest in and to lands claimed to be the property of some one else, and, for the-purpose of paying debts, the administrator of such estate may, under the proceedings of the Probate Court, sell all such interest. But I know of no power in the Probate Court to authorize, in cases like the present, the administrator to sell the interest which the intestate’s estate has in real estate. This power can be exercised in cases provided for in the statute, but this case is not such a one. The numerous provisions in the 8d article of the act concerning administration, (R. C. 1845,), do not embrace a case like the present. Now, under these pro-- [604] ceedings of the Probate Court, given in evidence in this case, it cannot be insisted that the interest of the estate of Franqois Bompart passed under the deed of Lewis F. Bompart, administrator-^ bonis non, to Lucas and Hunt, divested of the interest of the minor heirs of said Francois. Indeed, no interest passed, because the proceedings were incapable of giving power to the administrator to pass thus the interest of Bompart’s estate. Under an order of sale, provided for by law, in cases allowed by law, such an interest would pass by sale and deed in pursuance thereof. Here, there is no pretence that the minor heirs’ interest passed. Lucas and Hunt then get nothing by this deed of the administrator de bonis non. The court properly refused the evidence offered in relation to the pecuniary circumstances of the widow of Bompart in 1846. She did not, by her deed, pretend to sell the interest of the estate of her deceased husband in the tracts of. land mentioned. The interest -of the -estate of Bompart to the two tracts of land, means all the interest. This embraces the right of the administrator to sell the said interest of his intestate’s estate, if necessary, to pay debts ; for the administrator has such interest, and can sell it, when necessary, under the law. It also means the interest which the heirs of Bompart, deceased, may have in and to the said tracts of land, when there is no necessity upon the administrator to retain the same to pay debts. Now, unless a quit elaim deed of relinquishment of the interest of the estate of Franqois Bompart, deceased — that is, all the interest— be made to James H. Lucas and AnneL. Hunt, and their heirs, this note cannot be legally demanded of Patterson, so as to become the foundation of an action. Upon the whole case, then, we are of opinion that the court below laid down the law correctly by its instruction. Its judgment is therefore affirmed ; the other judges concurring.