Riley v. Akin

DISSENTING OPINION. There is no theory upon which the court can render judgment in this case in favor of plaintiff.

The evidence is that the agreement was that the land should be "free from all charges and encumbrances of every kind and character." There is no evidence or claim that the taxes in controversy became a lien upon the land during the life of deceased. In fact, the abstract of the record in another case that came to this court in which defendant was a party, shows that deceased died before any of these taxes became a lien. However, we cannot, in order to dispose of this point, take judicial notice in this case of a record in another case in this court. But what I am saying is that we cannot assume that any part of the taxes sued for herein became a lien prior to the death of deceased. Unless such is the case defendant, as administratrix, had no right to pay the taxes upon the real estate of deceased, unless she was in possession of it under an order of court, and then only after there had been a formal allowance of the debt by that court. [Graham v. Wilson, 185 S.W. 1160.] There is no evidence that the administratrix in this case ever took possession of the property under an order of the Probate Court: in fact, there is no claim or contention that any such order was ever made.

It is doubtful that a probate court, even in its order to sell real estate, can, in a case of this kind, order that it be sold free and clear of encumbrance. [Sections 168, 135, 138, 140, and 165, R.S. 1919; Jackson v. Magruder, 51 Mo. 55, 58. Welton v. Hull, 50 Mo. 296, 298, 300.] (The facts in the Jackson and Welton cases are not entirely similar to those in the case at bar, and the cases are cited only for statements of the court therein as to the kind of title that can be conveyed by a deed in a sale of this kind.) However, we need not pass upon this question, because there is no claim or contention that the order of sale contained any such provision and, certainly, the administratrix had no right to enter into a contract selling land free of encumbrances without any authorization by the probate court. [35 C.J. 30, 56, 57: C.J. 631: Sexton v. Siking, 90 Ill. App. 667.]

The rule of caveat emptor applies to judicial sales, including those by authority of the probate court. The purchaser takes subject to defects, liens and encumbrances, or at least those he had notice of or of which he could have obtained knowledge. [Throckmorton v. Pence, 121 Mo. 50; Estes v. Alexander, 90 Mo. 453; Higbee v. Bank, 244 Mo. 411; Cashion v. Faina, 47 Mo. 133; Schwartz v. Dryden, 25 Mo. 572; Owsley v. Smith Heirs, 14 Mo. 153; 35 C.J. 75. 78.]

A sale of real estate through the probate court, even at private sale, is a judicial sale. The only difference between a private sale and a public sale of this kind is that, in the former, the land must not be sold for less than three-fourths of its appraised value, while in the latter, it is sold to the highest bidder. In neither event can the administrator become a purchaser of the real estate. [Sec. 162, R.S. 1929.] There is no ground for saying, in effect, that sections 135, 138, 140 and 165. Revised Statutes 1929, have no application to the facts in this case. Upon their face they apply to both public and private sales. They, together with section 168, in no uncertain terms, state what shall be sold and conveyed.

Without passing upon the point that the contract of sale was merged in the deed. I think there is no theory upon which the probate court can order the payment of any part of these taxes after the land was sold, even if it can be shown that part of them accrued prior to the death of deceased. The term of court at which the transaction was consummated had expired and at the time this suit was brought the probate court had no jurisdiction over the land in question, and it could have made no order concerning it. The whole matter was a closed book so far as the estate was concerned and that court could not approve, even if it had the power, the sale that was actually made. Legally, the estate owes plaintiff nothing and the court had no more right to give away $486.66 of the money of the estate to plaintiff then to donate it to any other purpose. The whole case, I think, is decided in Sexton v. Siking, supra.

The judgment should be reversed.