Agan v. Shannon

Sherwood, P. J. I. Ejectment brought by the heirs of Miller for land once owned by their father, which was sold by Frazier, the administrator of his estate, as long ago as 1858, for the payment of debts. The land inventoried, petitioned to be sold, ordered to be sold, and appraised under the order of the court, was the only land of which there is any mention made in the records of the probate court down to that point, was the southeast quarter of the northwest quarter, and the northeast quarter of the southwest quarter, section 25, township 25, range 29, designated on the subjoined plat as D 1, I) 2. — 665 — But the administrator when he made report to the court of his sale to Legrand stated therein that he had sold the S. E. qr. of 8. W. qr., and N. W. qr. of S. W. qr. of section 25, township 25, range 29, which land has been designated on said plat as M 1, M 2. In that report, however, he distinctly states that he made the sale “in pursuance of an order of said court” after having same appraised, etc. The only certificate of appraisement is the one already mentioned. Beyond question the only land which the administrator could lawfully and rightfully sell to Legrand was that mentioned in the order and none other. No evidence, therefore, was necessary to prove that he sold the same land. Everyone, even a private individual is presumed by the law to perform his engagements and his duty. Here, the administrator was acting in a g^cm-official capacity. Lenox v. Harrison, 88 Mo. 491, and cas. cit. It will consequently be presumed that the administrator made but a clerical mistake when he inserted the wrong numbers in his report and in his deed. Looking at the abbreviated description of the land as contained in his report, it will be found that the mistake only consisted of but two letters which have been italicised, changing an N to an 8, and changing an E to a W. And, unless W6 make the presumption aforesaid, we must conclude that the administrator sold the land which he had not been ordered to sell and which had not been appraised. — 666 — II. And an examination of the record readily discloses that the sale was approved, though no formal order of approval was made to that effect. The statute requires no such order. It suffices if such approval be manifested in any one or more of a variety of ways inconsistent with the idea of non-approval. Here, the deed was acknowledged before M. L. Wyrick, the presiding judge of the probate in open court, and in his final settlement the administrator accounts for the precise sum, $201, for which the real estate sold. These facts and the further fact that though the estate was indebted, had not wherewithal to pay its debt, except by sale of its real estate, yet no resale was ordered, brings this case fully within the rule laid down in Jones v. Manly, 58 Mo. 559 ; Grayson v. Weddle, 63 Mo. 523. The statute, Revised Statutes, 1855, section 34, page 147, provided that, if the report of sale was not approved by the court, the proceedings should be void, etc.; but that, if the report was approved, then the administrator should make a deed, etc. Sec. 35. So that the fact that the administrator executed and delivered a deed to the purchaser carries with it a presumption of previous approval of the sale by the court. But what sale ? The only rational answer to this question is the sale of the land previously ordered to be sold. III. The certificate of acknowledgment is as follows : “ State oe Missouri. ) In the Probate Court of Barry “ County of Barry. j County, May 3, 1859. “ Be it remembered that W. L. H. Frazier, administrator de bonis non of the estate of Andrew J. Miller, deceased, this day personally came into open court and acknowledged the execution of the foregoing deed for the use and purposes therein contained, which acknowledgment is entered on the records of said court of said date. — 667 — ‘ ‘ In testimony whereof I, W. L. H. Frazier, J udge of said court, have hereunto set my hand and affixing my private seal. “ [ Seal ] (there being no seal of office yet provided ) at office in Cassville the day and the year above written. “M. L. Wyeiok, “Probate Judge.” Under the ruling in Lincoln v. Thompson, 75 Mo. 623, this certificate of acknowledgment would be bad, because, though professedly made in open court and signed by M. L. Wyrick as presiding judge of the probate, yet it is stated therein that IF. L. H. Frazier was such judge,, and this would render the certificate a nullity / but that case is not law, and we overruled it on the point mentioned and hold the certificate good. IV. The deed of the administrator was duly put to record, and Legrand went into possession of the right land in 1858, and he and his family remained in possession up to some time during the war, when, his death occurring, they shortly afterward moved away, and remained away some four years, when they returned, and the land described by the correct numbers was sold at administrator’s sale as that of Legrand, and a deed made to the purchaser, who, and those claiming under him, have been in continuous possession ever since, i. e., from 1869 up to the time of bringing this ejectment, in 1886. If the order to sell the land, made in 1858, and upon which Frazier, the administrator, acted, was not made at such a time that the publication necessarily precedent to that order could have been made, and the records of the probate court affirmatively show this, then of course neither legal nor equitable title passed by the sale. ' In the present state of the record before us, it is difficult to tell just how this is. It appears that Mrs. Miller, the widow of the decedent owner of the land in controversy, presented her petition as administratrix for the sale of the land, and an order for such sale was — 668 — made at the August term, 1857, of the probate court, but that no sale occurred. It seems then that at the November term, 1857, she presented her application for an '•‘■order oí publication,” and this was granted, and she was ordered to “ advertise as the law requires.” ■ If by this entry is meant a publication which is requisite to precede an order of sale, then it may well be that the order to sell was valid when made at the Pebruary term, 1858, directing the newly-appointed administrator de bonis non to sell the real estate in question. Such advertisement or publication at that time could have been made by posting up ten handbills twenty days, etc. R. S. 1855, sec. 25, p. 145. If there is nothing in the probate records affirmatively showing the- contrary, it will be presumed that the order of sale was made upon proper publication of notice. And, of course, notice by the administratrix of an intended application for an order of sale of- the land could be used by her successor, Prazier. The order of sale itself is evidence of any fact which it is necessary to give the power to make it, and it is only where the record shows that it was impossible that the notice could have been given, that the order of sale would prove invalid. Valle v. Fleming, 19 Mo., loc. cit. 460. After great lapse of time, during which files may be lost or destroyed, courts indulge very favorable presumptions to uphold judicial sales, and, in the absence of something of record showing the contrary, the presumption will arise from an order of sale and deed and approval of such sale that all requisite antecedent steps were taken. Price v. Springfield, etc., 101 Mo. 107. Acting on the principles just stated we shall hold, until better advised, that the order of sale was made upon a proper basis. This is decisive of this case, if the description of the property in the deed can be made to tally with that in the order of sale, which is the point next for consideration. — 669 — Y. It is a familiar principle that, when one deed makes reference to another, the instrument to which reference is thus made becomes thereby part and parcel of the former instrument. To all intents and purposes the two instruments become one ; they become mutually incorporated into each other. Brownlee v. Arnold, 60 Mo. 79; Waples v. Jones, 62 Mo. 440; Noell v. Gaines, 68 Mo. 649 ; Lincoln v. Thompson, 75 Mo., loc. cit. 637; 2 Smith Lead. Cases, 259; Whittlesey v. Delaney, 73 N. Y. 571. Under the law, as it stood at the time the sale in question was made, there was no necessity for making in the administrator’s deed a formal description of the land sold. All that the deed need then do was to refer, “in apt and appropriate terms, to the order of sale, and the court by which it was made, the certificate of appraisement,” etc. R. S. 1855, sec. 35, p. 147; R. S. 1889, sec. 168. And it has been ruled that a failure to designate the lands to be sold in the order of sale will work no hurt, if the petition praying for the sale of the land, and the appraisement set out the land correctly, and the order of sale refer to, and is based on, such petition and description. Adams v. Larrimore, 51 Mo. 130. The same rule holds as to the deed which consummates the sale made under the order and refers thereto, and to the certificate of appraisement. Id certum, etc. And when one deed makes reference to another deed or instrument the instrument referred to need not be recorded; thenceforth, it “has the same effect as if it had been inserted in the subsequent deed.” Tiedeman, Real Prop., sec. 841. Applying the principles already announced to the cáse in hand, we take the deed in question and lay it side by side with the petition for sale, the order of sale and the certificate of appraisement. Doing this, we find that the deed corresponds with these instruments in every particular, except the two particulars already mentioned. Now what is to be done? Plainly this: — 670 — We must make the description contained in those instruments control the deed. Doing this, treating the petition, order of sale and certificate of appraisement and deed as one instrument, it is lawful for us to apply the maxim falsa demonstratío, etc., and to reject as repugnant whatever in the deed does not correspond with the description contained in the instrument mentioned; for, after such rejection, enough will be left to identify the property intended to be conveyed; to harmonize the several instruments thus placed in juxtaposition ; and to enforce the deed under this construction. Tiedeman, Real Prop., sec. 829. Pursuing the course here indicated, there can be no doubt as to what land the deed was intended to convey, and did in contemplation of law convey, especially as against the heirs of Miller, who are mere volunteers, and who, regardless of the honest purchase and payment for the land in controversy by Legrand so many years ago, would now fain “ reap where they have not sown and gather where they have not strewed.” We'need not determine how we should rule this point were an innocent purchaser concerned ; but we do hold, that, as against these heirs who sit in the seat of their ancestor, the administrator’s deed, so far as passing whatever title they may have had to the land in controversy, was, in its description, sufficient. YI. If the foregoing conclusions are correct, then it is unnecessary to examine further; for, if the title passed by the administrator-’s deed to Legrand, then that is an end of the matter; but, granting that the ■ necessary precedent steps were not taken so as to have a-valid order of sale, how is this concession to benefit the plaintiffs in view of the statute of limitations % On this point, on behalf of plaintiffs, the theory is urged that the widow’s dower was never assigned ; that it makes no difference if the mansion house of Miller was not on the land in controversy, that she wTas entitled to remain in possession of the messuage, or plantation, — 671 — until assignment of dower should occur, and that, in consequence thereof, the statute did not run against the plaintiffs. On the authority of Brown v. Brown, 68 Mo. 388, it may well be conceded, that so far as concerns a widow’s right to her quarantine, which includes the whole of the plantation, that the fact or accident of the location of the mansion house on an adjacent forty would not affect her quarantine right to the messuage, or plantation, situate on land which formerly belonged to her husband. And, on the authority of several cases in this court (Orrick v. Robbins, 34 Mo. 226; Brown v. Moore, 74 Mo. 633 ; Roberts v. Nelson, 86 Mo. 21; Holmes v. Kring, 93 Mo. 452), the widow is entitled to quarantine in and to the whole of the plantation and its messuages and its rents until her dower is assigned to her, and that the statute of limitations does not run against the heir until such dower be assigned to her. But all the foregoing instances were ones where either the widow or her grantee were in possession of the premises in which the widow was entitled to her quarantine. In the case at bar, however, she had quit the premises in 1857. This being the case, there was nothing to prevent the operation of the statute against the heirs, because there was nothing to preclude them from bringing their action, for the reason that a widow’s right to dower only becomes a life-estate, from the time her dower is set out to her. Tiedeman, Real Prop., sec. 115; 1 Woerner, Am. Law Admin., p. 254. Holding these views, we reverse the judgment and remand the cause, with directions to the lower court to proceed in a manner not inconsistent with this opinion. All concur; Baeclay, J., only in paragraph 6.