Melton v. Fitch

Burgess, J. This is an action by plaintiffs, heirs of Joseph W. Melton, deceased, against their mother, Frances Watson, Nancy Fitch, and George Fitch, her husband, for the purpose of having the dower of the defendant Frances, as the widow of Joseph W. Melton, deceased, admeasured and set off to her in the following described tracts of land in Greene county, to wit: The northeast quarter of the southeast quarter and the southeast quarter of the southeast quarter of section 27, township 30, range 20, upon the south forty of — 286 — which said Joseph resided' at the time of his decease in January, 1863. Frances Watson filed no answer, while that of Fitch and wife admitted possession and pleaded the ten year statute of limitations. To the answer' of the Fitches plaintiffs replied, denying that their possession had been adverse, averring that their only title was derived from Frances Watson, their codefendant, and that at the time she conveyed to them she had no other right of title than dower and quarantine, and that defendants Fitch claiming under her are estopped to deny the title of Joseph W. Melton, deceased. The trial resulted in favor of defendants, dismissing plaintiffs’ petition and judgment against them for costs, from which they appeal. The facts are about as follows: In February, 1863, John H. Aiken was duly appointed administrator of the estate of Joseph W. Melton. Afterwards the land of the estate was ordered sold by the probate court to pay debts. The order of sale erroneously described the north forty as the northwest quarter of the northeast quarter, instead of the northeast of the southeast, but correctly described the southeast of the southeast. The same mistake occurred in the notice of sale. The two forties were both correctly described in the appraisement, report of sale, its approval and administrator’s deed. The purchaser,- at the administration sale, was the widow- of Joseph W. Melton and mother of plaintiffs, Frances Watson, the defendant, to whom dower is sought to be assigned. Aiken made her an administrator’s deed. The payment of the purchase money by said Frances Melton to the. administrator is shown by his report of same, filed February 27, 1866. After this purchase, Frances Melton lived on the land for more than eight years, and then sold it to the defendants Fitch, — 287 — who have been in the open, notorious and exclusive possession ever since, claiming to own it against all others. They have put it in cultivation, fenced it, substantially rebuilt the house where Melton died, erected outbuildings and set out fruit trees. The plaintiffs showed title in Joseph W. Melton to the southeast of the southeast of section 27 by original entry, November 26, 1856. But failed to show any legal paper title in him to the other forty, the northeast of the southeast. The original entry of this forty was by Henry S. Kennedy, February 5,1841, who conveyed it to Samuel Peper, November 5, 1841, and the paper. title, from aught that appears,'still remains in him. Under section 1, chapter 56, Revised Statutes, 1855, Mrs. Watson, as the widow of Joseph W. Melton, •deceased, was entitled to be endowed of the third part of all the lands whereof her husband died seized, and if the defendants Fitch, who claim title under her, only acquired her dower interest in the land in controversy, of which the evidence showed her husband died seized, then these plaintiffs, as the heirs at law of said Melton, are entitled to have said dower interest admeasured and set off to defendants Fitch as the assignees of Mrs. Watson; but if Mrs. Watson acquired the fee to the_ land by purchase at the administrator’s sale and after-wards conveyed it by deed to them, or defendants had occupied and held the adverse possession of the land for ten consecutive years after such conveyance to them and before the commencement of this suit, then plaintiffs’ action was barred by the statute of limitations and the judgment must be affirmed. Mrs. Watson purchased all the land at a sale made by the administrator of her deceased husband for the payment of the debts against the estate and received a deed therefor, but it is claimed that her deed was void — 288 — and passed no title because: First, the law in force at the time of the administrator’s sale required the administrator to publish notice thereof for four weeks in some newspaper published in this state and by putting up copies of such notice in ten public places twenty days before the day of sale, neither of which, it is contended, was done; second, the order made by the probate court, nor the notice of sale upon which the administrator’s deed is based, described the northeast quarter of the southeast quarter, and for that reason the sale of that forty acre tract was void; third, the notice of sale by the administrator, according to the record, was published first June 20, 1864, and last July 4, 1864, when the sale was on the fifteenth day of August, 1864, while the law required the publication of such notices to be continued up to the day of sale; fourth, the administrator having made a final settlement and been discharged by the probate court on the sixth day of June, 1866, had no power to make report of the sale, and the probate court had no jurisdiction to approve the same on the twenty-third day of November, 1866, at which time it was done. We will dispose of the objections to the administrator’s deed in their regular order: It is manifest from the affidavit made by the publisher of the paper in which the notice of the sale of the land was advertised that the recital in the deed that the land had only been advertised for sale twenty days before it was sold, was a clerical error, as the proof of publication clearly shows that it was published for four weeks as required by law. The law did not require that the notice of sale should be continued up to the day of sale: Nor did'the fact that the record failed to show that the posting up of a copy of said notice in ten public places in the county of Greene twenty days before the sale, had been dispensed with by order of — 289 — the court, render said sale void and subject to collateral attack, as it was merely an .irregularity. As there was no order of sale by the probate court for the northeast quarter of the southeast quarter of the land, the sale by the administrator of that forty was without authority and absolutely void. It was held in Evans v. Snyder, 64 Mo. 516, that such a defect is fatal to the title claimed under an administrator’s deed, and can not be supplied whether it be by notice of sale, report of sale or the approval thereof. That case was followed and approved in Greene v. Holt, 76 Mo. 677. But in this case, to add further to the infirmity of defendant’s title to that forty, it was never in fact advertised for sale, as the proof of the notice shows. The third contention has been disposed of by what was said in reply to plaintiffs’ second contention in the foregoing paragraph. As to the power of the administrator to make report of the sale of the land, and of the jurisdiction of the probate court to approve the same after he had made final settlement of the estate and been discharged, we must hold that such proceedings were absolute nullities. It was so held in effect in Garner v. Tucker, 61 Mo. 427, and State to use v. Stephenson, 12 Mo. 182. After the administrator had made final settlement and been discharged he had no more to do with the estate of deceased than any other individual. Rugle v. Webster, 55 Mo. 246; Long v. Joplin, etc., Co., 68 Mo. 422; Grayson v. Weddle, 63 Mo. 523. Nor had the probate court any jurisdiction over him as such. He was no longer administrator, his functions as such having ceased when he made his final settlement and the order was made approving it and discharging him. The administrator’s deed was, therefore, void as having been made without authority, and passed no title — 290 — to the grantee therein named to any part of said land therein described. The order approving the final settlement and discharging the administrator was made June 6, 1866, while no report or order approving the sale was made until the November following, nor does the deed purport to have been made until February 26,1874, nearly eight years after the final settlement, and discharge of the administrator. The only remaining question deserving consideration is that with respect of the statute of limitations which is relied upon by defendants as a bar to plaintiffs’ action. In order that this defense may be sustained the possession of defendants must have been adverse as against the plaintiffs for- ten consecutive years. Their paper title is derived from Mrs. Watson, widow of Joseph W. Melton, deceased, whom we have seen had no other interest in the land than that of dowress, as she acquired nothing by her purchase at the administrator’s sale. As dowress she did not hold possession adverse to the heirs of her deceased husband, but in consonance with them, and could not, of course, convey anything but her dower interest to defendants, who succeeded to her rights as the widow of Joseph W. Melton, deceased, and nothing more, and the defendants Fitch occupy precisely the same position towards the plaintiffs as did the widow. Their possession never did become adverse to plaintiffs, nor would it so long as she lives, and her dower remains unassigned. Brown v. Moore, 74 Mo. 633; Holmes v. Kring, 93 Mo. 452; Sherwood v. Baker, 105 Mo. 472. The evidence showed beyond any question that Joseph W. Melton, deceased, was seized and possessed of all the lands described in plaintiffs’ petition at the time of his death; that during his lifetime he used and cultivated it as one farm, and under the law his widow — 291 — was entitled to dower therein, notwithstanding the dwelling house and other buildings were all upon one forty acre tract. Gentry v. Gentry, 122 Mo. 202. It follows from what has been said that the judgment must be reversed, and the cause remanded. All of this division concur.