Cunningham v. Edsall

BRACE, P. J. This is a suit in equity to correct an alleged mistake in two deeds, in which, on the hearing, the plaintiffs’ bill was dismissed, judgment rendered against them for costs, and they appeal. The plaintiffs are the sole heirs at law of Franklin Cunningham, deceased, and the defendants are the sole heirs at law of James R. Edsall, deceased. James R. Edsall died in the year 1874 or 1875, seized and possessed, among other lands, of the following tract in the county of Pemiscot, to-wit: ‘ ‘ The south half of the southwest quarter of section No. five, east of [195] the bayou, in township No. 17, north of range No. 12, east.” By warranty deed, dated May 4, 1886, Henry R. Edsall, since deceased, conveyed “the south half of the southwest quarter, east of the bayou, of section No. six in township No. 17, north of range No. 12, east” in said county, to Franklin Cunningham. It is charged in the petition that the land which the said Franklin Cunningham purchased from the said Henry Edsall, and which was intended to be conveyed by said deed, was the land in section number five, aforesaid, but that by mutual mistake the land was described as in section number six. That the said Henry R. Edsall had purchased said land in section five “at the sale of the administrator of said James R. Edsall, deceased, ’ ’ and that by mutual mistake the deed of said administrator described the land as in section six instead of section five as intended, and that “the deed of conveyance from said Henry Edsall, deceased, to said Prank Cunningham, deceased, continued the same error. ’ ’ Wherefore, plaintiffs pray that the error in said deeds be corrected, and that the defendants be divested of title to the land aforesaid in section five and that the same be vested in the plaintiffs. Upon the allegations of the petition issue was joined by answer. The only evidence introduced in proof of the allegations that Henry R. Edsall purchased said land in section five at the sale of the administrator of the said James R. Edsall and that by mutual mistake the deed of said administrator described the land as in section “six” instead of section “five” as intended, was the following entry in “'Carleton’s Abstracts of Pemiscot county: ’ ’ “No. 7. James R. Edsall’s administrator to Henry Edsall. Administrator’s deed, dated April 5, 1881. Consideration $217.50. Piled and recorded April 5, 1881, in book ‘F’ at page 158. Lands conveyed: The south half of the southwest quarter of section No. 6, [196] east of the bayou, in township No. 17, north of range No. 12, east,-containing seventy acres, more or less.” And evidence tending to-prove that the said James R. Edsall never owned the south half of the southwest quarter of section six; that, that land is not “east of the bayou,” and that the south half of the southwest quarter of section five which he did own at the time of his death is east of the bayou. ’ ’ That was the case made for the plaintiffs by the evidence. The administrator’s deed which plaintiffs seek to reform was not offered in evidence, or its absence accounted for, and the only evidence that it ever existed or of its contents is the entry aforesaid in “Carleton’s Abstracts.” To the admission of thé entries in those abstracts, however, no objection, was made. So that the chancellor was called on in this proceeding against the heirs at law of James R. Edsall, deceased, to correct an alleged mistake in a deed executed by his administrator, of the contents of which there was no evidence, except the entry in the abstract aforesaid, and as corollary thereto to divest the defendants of the title which upon the death of their ancestor descended to and vested in them, and vest their title in the grantee in such deed. The title of the heirs of James R. Edsall to the land of which he died seized could be taken from- them only by a proceeding in the probate court, in the manner pointed out by the statute. In, order thereto, it was necessary that there should have been a petition, an order of sale and a notice thereof, correctly describing the land — a sale of the land described, and approval of that sale by the court and a deed by the administrator made in pursuance thereof. The administrator could have intended to sell and convey no other or different land than that which he was ordered to sell, and there was no evidence in' the ease that the land which he conveyed by this deed was not the land which he was or [197] dered to sell — if there was any snch order, of which, however, there is no evidence, nor is there any evidence of any proceeding in which such an order could have been made. If there was any such proceeding, the defendants were not privy thereto — it was hostile to them and their interests. Whatever power the administrator had over the land which descended to them was given to him by the statute and only by compliance with its requirements could they be divested of their title — nothing could be laid upon: their conscience by his acts. Administrators’ sales are judicial sales and to such sales the rule of caveat emptor applies. [Throckmorton v. Pence, 121 Mo. 50; Estes v. Alexander, 90 Mo. 453.] If the administrator’s deed was made in pursuance of a sale made by the administrator as in effect is charged in the petition, then the land conveyed must be presumed to be the land that he was ordered to sell, and if he was ordered to sell the south half of the southwest quarter of section, six east of the bayou, there was no mistake in the deed. The purchaser by the deed got just what he purchased. There is not a particle of evidence tending to prove that the administrator was ordered to sell the south half of the southwest quarter of section five east of the bayou, or of any proceeding under which he could have sold a tract of land by that description. Hence there was no evidence of any mistake in the administrator’s deed, and, as this was the vital question in the case; the trial court committed no error in dismissing the bill, and its judgment is affirmed. All concur.