State ex rel. Hey v. Harper , 54 Mo. App. 286 ( 1893 )

Smith, P. J.

— One E. C. Peppard, a non-resident of Missouri, was the owner of an undivided, one fourth of a certain tract of land in Kansas City, Missouri. In 1882 a partition suit was begun in the circuit court of Jackson county, Missouri, by W. L. Reid and Albert M. Winner, the owner of the other three fourths, against said E. C. Peppard, who was brought into the case as a non-resident by order of publication. The land was not susceptible of division and a sale of the same was ordered for the purpose of partition. The defendant, James P. Harper, was by the circuit court appointed a special commissioner under the statute for the purpose of making such sale, which he did. The distributive share of said E. C. Peppard from the proceeds of said .sale amounted to $322.22. Defendant Harper, as such commissioner, executed a bond with the defendants, D. Ellison, W. L. Beid and Albert M. Winner, as sureties. E. O. Peppard never called for his money. For the period of seven years he was never heard from, and the presumption of his death obtained. The relator,. Fred O. Hey, as public administrator of Jackson county, Missouri, took charge of the estate of said Peppard and proceeded to administer the same. The present suit is an action on said bond at the relation of said administrator. The defendants assail the judgment on the grounds that upon the record the judgment, which was for relator is erroneous, and that the petition fails to state facts sufficient to constitute a cause of action.

The principal contention of the defendant'' is that the relator Hey is not a proper party to maintain the-action. In support of this it is argued that the partition suit was brought for the purpose of dividing the-land, and the sale which was ordered in the circuit court was a conversion of the land only for the purposes of division, and the money, the proceeds of the sale,, remained real estate and descended to the heir, and did. not pass to the administrator.

The question thus presented is decided in the negative by the case of State ex rel. v. Moore, 18 Mo. App. 406, and to the ruling there made we feel constrained to adhere notwithstanding the plausible grounds upon which its soundness is called in question by the learned, counsel for defendants. It has now been about eight, years since that decision was announced, and its soundness so far as we know has never before been questioned in this state, and, since it has practically become-a rule of property, we can discover no sufficient reason why it should be overthrown and another rule, the-soundness of which is not entirelv free from doubt,, substituted in its stead.

Construing sections 4965 and 7188, Eevised Statutes in the light of the decision of the supreme court in State ex rel. v. Cayce, 85 Mo. 456, and it seems to us plain enough that the relator is entitled to recover interest at the rate of five per cent, per month after demand.

It follows that the judgment will be affirmed.

All concur.