Metcalf v. Larned

Wagner, Judge, delivered the opinion of the court. In the year 1848 Thomas F. Smith died seized of a tract of land containing 640 acres, lying and being situate in the county of St. Louis; his estate was duly administered on, and the settlement of the administrator in March, 18^7, showed a balance in his hands of personal effects amounting to $817-52. In the year 1852 the defendants in this suit, who are heirs at law of Thomas F. Smith, united in a petition for partition of the land, and commissioners were appointed by the court, who reported that the land was not susceptible of division without prejudice; whereupon the court ordered the same to be sold by the sheriff. The tract, for the purpose of sale, was divided in several parcels, a portion of which the plaintiffs purchased when sold in partition. Previous to the sale Metcalf, who was a non-resident, employed an attorney to examine the records to see whether there were any encumbrances or debts owing by the deceased [575] which would affect the title to the land. After diligent search in the Probate Court the attorney found none, and so represented, and upon the faith of that representation Met-calf made the purchase. In September, 1853, Sturgeon, administrator of Chambers, commenced an action' for breach of covenant against Beck-with, the first administrator of Smith, upon the covenants of a deed executed by Smith in 1843, laying the breach as occurring in 1848, five yeai’s after Smith’s death. The writ was returnable to the October term, 1853, of the St. Louis Land Court. There was no service on Beckwith, and the case was continued until the March term, 1854. Beckwith died in December, 1853, and O. C. Whittelsey succeeded him in the administration. At the March term of the court, 1854, and after the sale in partition, Whittelsey entered his appearance voluntarily. Judgment was obtained in the suit of Chambers’ Adm’r v. Smith’s Adm’r, and there being a deficiency of assets, the land sold in partition was on the petition of Whittelsey, the administrator, sold to satisfy the judgment. In the sale under execution Mrs. Tyler, the owner of the judgment, bought the property, and subsequently the plaintiffs paid her the amount of the judgment debt and received from her quitclaim deeds for the premises. This suit was instituted against the defendant as the heir of Smith, who had received distributive shares from the estate arising from the sale in partition, to reclaim the amount paid by plaintiffs in protecting and completing their title. The first point raised, that, the institution of the suit of Chambers v. Smith was sufficient to constitute notice of subsisting encumbrances to purchasers or bidders at the sale in. partition, we think is not maintainable. The papers were previously filed, but there was no service of the writ, or appearance by the party, until after the sale had taken place; and the established rule seems to be, that a lis pendens is-not notice to a purchaser so as to affect and bind his interest by the judgment till the service of the writ after the petition [576] is filed—Murray v. Ballou, 1 Johns. Ch. 566; Fenwick v. Gill, 38 Mo. 525. The court refused, on the application of the plaintiffs, to declare that the defendants were liable in solido ; and in this we think it was correct, for where heirs are proceeded against on account of assets which they have received from their ancestor, they are chargeable only distributively and pro rata.—2 Tuck. Com. 111. An estate by descent renders the heir liable for the debts of his ancestor to the value of the property descended, and he holds the land subject to the payment of the ancestor’s debts—4 Kent’s Com. (6 ed.) 419; Watkins v. Holman, 16 Pet. 25. The heirs cannot alien the land to the prejudice of creditors, and they have no right to the real estate of their ancestors, except that of possession, until the creditors are paid. But it is insisted for the defendants, that' the plaintiffs bought the property in a partition sale, and that in a statutory proceeding for partition there is no warranty—Owsley v. Smith, 14 Mo. 153; Schwartz v. Dryden, 25 Mo. 572. Admit this principle, and the only question to be determined is whether it applies to this case. In Langham v. Darby, 13 Mo. 553, the heirs of Langham joined others in a suit for partition of certain lands ; an order of sale was made; after sale, but before the sheriff made his report, the administrator applied to the court for an order that the proceeds of the sale going to the heirs should be paid over to him for the benefit of Langham’s creditors ; the court, being satisfied that the estate was insolvent, made the order. This court approved the proceeding and said that justice was accomplished by it. The, case of Van Wezel v. Wyckoff, 3 Sandf. Ch. 28, decides that a creditor of the ancestor who is entitled to maintain a suit against heirs in respect of the real estate descended to them, may have a decree against the proceeds of such real estate when the same have been paid into court upon a sale of the property under an order or decree of the court. Under the law, the heirs of Smith must give way to cred [577] itors. The debts must first be satisfied before they can claim or derive any benefit from the estate of their ancestor. The money that they got arising out of the sale in partition was the money of the creditors so long as any debts or liabilities remained unpaid. The plaintiffs who, after diligent search and without notice, purchased in good faith, were compelled to pay their money to satisfy an encumbrance for which the heirs were liable, and they ought not to be turned away remediless. The heirs had received and obtained possession of the plaintiffs’ money, which should have been appropriated to the payment of the judgment debt, and we are unable to distinguish any difference in principle where the money is thus paid over and sought to be recovered back, and where a specific decree is rendered against it when it has been paid into court. Judgment affirmed. Judge Fagg concurs; Judge Holmes, having been of counsel, not sitting.