Grant v. Hathaway , 1908 Mo. LEXIS 272 ( 1908 )

BURGESS, J.

This is an action in ejectment for ferty acres of land in Callaway county, Missouri. In ¡January, 1903, David S. W. Hathaway, deceased, of Davis county, Iowa, bargained to purchase two adjoining farms in Callaway county, Missouri, one consisting of 120' acres, and known as the Tyler farm, and the other 160! acres, owned by one Robert L. Smith. For the latter tract Hathaway agreed to pay $5,000. Smith executed a deed, conveying this 160' acres to D. S. W. Hathaway, and left it in the hands of real estate agents at Fulton for delivery to Hathaway. On March 9, 1903, Hathaway, accompanied by his son, Charlie A., and George W. Hamilton, a real estate agent, went to the law office of. T. A. Boulware, in Fulton, and stated to him that he wanted said deed changed so that Charlie A. Hathaway should appear as grantee in the deed instead of D. S. W. Hathaway. Boulware telephoned to Smith for permission to make the change, which permission was given, and the change was made accordingly. The elder Hathaway explained that the •deed was made without consulting him, and that he-wanted 120 acres of the land conveyed to his son and the remaining forty acres to himself. It was understood by Mr. Boulware that the old gentleman did not have enough money to pay the purchase price of the land, and that the son was to borrow a sum sufficient to make up the deficiency and give a deed of •trust on the land conveyed to him to secure the loan. After leaving Mr. Boulware’s office the parties went to the office of Mr. Hamilton, where the latter, as instructed by the elder Hathaway, wrote a deed conveying forty acres of this 160-acre tract to “David S. W. Hathaway, of the county of Davis, in the State of Iowa.” Upon the 120 acres remaining in the hands of Charlie A. Hathaway a loan of $1,600 was then effected, and the purchase price of the whole tract of 160 acres paid in full to Smith, the original grantor.

Charlie A. Hathaway had a little son, six years of age, named David S. W. Hathaway, after his grandfather, and he was present while these transactions were in progress; and the defendants claim in their answer to plaintiff’s petition, and endeavor to prove, that the grantee named in the deed to the forty acres in controversy was David S. W. Hathaway, minor defendant, and not his grandfather. However, both Mr. Boulware and Mr. Hamilton testified at the trial that it was their understanding that the old gentleman was intended as the grantee and not his namesake grandson. The elder David S. W. Hathaway went into immediate possession of the land in controversy, had it cultivated, and made improvements thereon. After his death, in August, 1903, his son, Charlie A. Hathaway, claimed this forty acres of land for his infant son. There was considerable testimony on the question of ownership of this forty acres, but as it has little or no bearing on the main issue involved, we deem it unnecessary to dwell upon it further.

It developed that the estate of David S. W. Hathaway in Davis county, Iowa, his home, was insolvent, and letters of administration were issued by the probate court of Callaway county to E. W. Grant, of Callaway county, as administrator of the estate of David S. W. Hathaway in said county. Hathaway left a will which was admitted to probate, both in Iowa and Missouri. By this will he bequeathed $5-,000 in money to his wife and also left her his residence property in the city of Bloomfield, Iowa. This residence property, however, was incumbered, and was. afterwards sold for the payment of the incumbrance. Bequests of $500i each were made to his two children, and the balance of his property was ordered divided equally between his wife and children. Claims of various kinds, amounting .to about $1,400', against the estate were allowed, and there not being sufficient personal property either in Iowa or Missouri to pay these-debts and legacies, the probate court of Callaway county, upon proper petition of the administrator of the-estate in said county, made an order directing said administrator to take possession of the decedent’s real estate in Callaway county unci to sell the same for the payment of the debts and legacies. The administrator-proceeded to have the real estate appraised, and advertised the 120 acres of land known as the Tyler farm and the forty acres of land in controversy for sale. The defendant, Charlie A. Hathaway, together with his infant son, defendant herein, refused to surrender possession of said forty-acre tract, and same was not sold by the' administrator. The other 120 acres of land were sold, sale approved, and deed made by the administrator, but the sum realized was insufficient for the payment of the debts and bequests. The administrator then brought this suit for the possession of said forty acres of land for the purpose of enabling him to sell same for the payment of debts and legacies. Trial was had in the circuit court of Callaway county, at the May term, 1905, of said court.

At the close of all the evidence defendants asked for an instruction in the nature of a demurrer to the-evidence, which was refused, and defendants duly excepted. The ease was then submitted to the jury upon the evidence and instructions, and a verdict was returned in favor of the plaintiff. Judgment was rendered accordingly. The defendants in due time filed a motion to set aside the verdict and for a new trial, which was overruled. Defendants appeal and assign error.

The paramount question in this case is whether an administrator in charge of an estate as such has authority under the provisions of section 146 et seq., Revised Statutes 1899, to maintain ejectment for the possession of a tract of land which belonged to the deceased at the time of his death, for the purpose of selling it for the payment of debts against the estate, and legacies, and placing the purchaser at such sale in possession, under an order of the probate court having jurisdiction of the estate authorizing the administrator to first take possession of the land before making the sale. In short, can an administrator as such maintain ejectment for the possession of land which belonged to the deceased at the time of his death?

It is well settled that when a person dies the owner of real estate or an interest therein, the title, in the absence of statutory provision to the contrary, descends, eo instcmti, and vests in the heirs, subject to statutory rights and incidents of ownership that exist at common law, as well as to the right of the administrator to sell the land for the payment of debts against the estate, and legacies, provided there be not sufficient personal property to pay them. [Lane v. Thompson, 43 N. H. 320.] In this event, the author-, ity of the administrator to sell the land relates back do the time of the death of the intestate, and all creditors have priority over the heirs, and a sale of the land, in pursuance of an order of the probate court, for the payment of the debts against the estate, and the execution of a deed to the purchaser by the administrator, will 'pass the title as against the heirs or as against any person to- whom they may have conveyed the land. But until such steps as indicated are taken by the administrator, the title and rights of the heirs remain unaffected and unimpaired. [Calhoun v. Fletcher, 63 Ala. 574.] The administrator having no title or even a right to the possession of the land, it is difficult to see how the court could confer upon him the right or authority to recover possession of it in this or any other proceeding.

In this State administrators, and executors are prohibited by statute (see. 130, R. S. 189-91), from renting or controlling the real estate of the deceased, “unless the probate court having jurisdiction shall be satisfied that it is necessary to rent said estate for the payment of debts, and make an order of record requiring such administrator or executor to take possession of and rent the same for a period not exceeding two years; and upon such order, such executor or administrator may prosecute and maintain any action for the recovery of such real estate in the same manner and with like effect as the testator or intestate might have done in his lifetime.” This statute not only does not authorize an administrator to control or even rent the lands owned by the deceased at the time of his death, but absolutely prohibits him from doing so, except for the payment of debts against the estate; then the obtaining of an order from the probate court having jurisdiction, authorizing him to do so, is a prerequisite, and upon such order the executor or administrator may prosecute and maintain an action for the recovery of such real estate in the same manner and with like effect as the deceased owner might have done in his lifetime. There is no pretense that any such order was procured in this case, or that the facts in evidence justify any such order. But aside from the prohibition of the statute, the express provision that an administrator may sne in ejectment for the possession of lands which belonged to the deceased for the purpose of renting them out for a limited time for the payment of debts against the estate is equivalent to saying that he cannot maintain ejectment for such lands for any other purpose. That an administrator as such cannot maintain ejectment for the possession of land of which the person whose estate he represents died the owner has been repeatedly decided by this court. [Burdyne v. Mackey, 7 Mo. 374; Chambers’ Admr. v. Wright’s Heirs, 40 Mo. 482; Thorp v. Miller, 137 Mo. 231; Hall v. Bank, 145 Mo. 418.]

With a due appreciation of the learned and ingenious argument, both oral and written, of counsel for respondent, we are unable to agree with them in their views, but are constrained to hold, for the reasons to which we have given expression, that the administrator cannot maintain this action, and that the court erred in refusing the instruction in the nature of a demurrer to the evidence asked by the defendants.

The judgment is reversed.

All concur.