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good on a direct appeal. The deed, there- counted to the estate for the money thus refore, vested the title to the land in Martin ceived. On final settlement there was paid and French.

to each of the three plaintiffs the sum of The further facts upon which the plain- $1,051. The administrators' deed vested the tiffs base a right to redeem are to the fol- title in Martin and French, and the deed to lowing effect: The deed from the adminis- the administrators vested the title in them, trators to Martin and French bears date, as but they held the land in trust for the benehas been said, the 9th January, 1877. It fit of the estate. Mabary v. Dollarhide, 98 vests in Martin 22-30 and in French 8-30. Mo. 198, 11 S. W. 611. The creditors and On the 20 February, 1877, Martin conveyed heirs could have pursued the land, while the to William French 2-30, and to E. P. French title remained in the administrators; and 10-30; so that Martin and W. L. and E. P. the question is whether the heirs can enforce French became the owners of the land in their claim against Banks, who purchased equal undivided parts. This deed contains with full knowledge of the facts constituta stipulation to the effect that the three were ing the trust. We think they cannot, and bound by a contract, the terms of which are for these reasons: The administrators acnot stated, made by the administrators of the quired the title for the benefit of the estate, one part and Martin and W. L. French of and not by way of any breach of trust. The the other part. On the 28th December, estate still owed debts, so that it was nec1877, James S. Martin, W. L. and E. P. essary to sell the land again. The legal title French conveyed the land back to "E. B. was in them, and they sold the land by the Stowe and Clarence Buell, administrators of direction of the probate court, and accountthe estate of J. J. Stowe,” for the considera- ed for the proceeds. Under these circumtion of $3,300. This deed contains the state- stances it was not necessary to procure a ment that it is made in compliance with the new order to show cause why the land conditions of a certain contract to said par- should not be sold. The estate and these ties of the second part, made by the parties plaintiffs received all the benefits arising of the first part, William L. French and from the transaction, and the claim now set James S. Martin, dated November 27, 1876. up by the plaintiffs is unjust and inequitaOn the 12th February, 1878, the adminis- | ble, and they ought not to be allowed to re. trators made a report of sale of certain real deem. estate, not now in question, to the probate It is insisted on behalf of the plaintiffs court, which report was approved. This or- that the sale by the administrators to Marder of approval goes on to say: "And it ap- tin and French was made as security for pearing to the court that since the last term the payment of $3,000, and the transaction of this court said estate has acquired title should be deemed and considered a mortto the following land,” describing the sec- gage. There is evidence tending to show tion now in dispute, "and that there are yet that such a transaction was agreed upon in remaining debts due by said estate and un- the first instance, but the parties were ad. paid, it is ordered that said administrators vised that the administrators could not prosell at private or public sale, for cash, all cure an order of the probate court allowing of the following lands," describing this sec- them to borrow money. They then protion, and also other lands included in a for- cured the order of sale. The evidence shows mer order of sale. Thereafter, and on the to our entire satisfaction that the adminis31st December, 1878, E. B. Stowe and Clar- trators' deed to Martin and French was not ence Buell, by their warranty deed of that made as security, but was an intended out date, conveyed the section now in question and out sale, with an agreement giving the to Thomas Banks for the consideration of administrators the right to purchase the prop$5,500.

erty at any time within one year. The There is considerable conflict in the parol judgment of the circuit court, which was for evidence, but, taken in connection with the defendants, is affirmed. All concur. recitals in the deeds, it establishes the following facts: Prior to the date of the administrators' deed, the administrators entered into a written agreement, which was

JENNINGS v. ST. LOUIS, I. M. & S. RY. CO. not produced on the trial, whereby they ac- (Supreme Court of Missouri, Division No. 2. quired the right to reacquire this section of

June 12, 1894.) land by paying to Martin and French $3,000

JURISDICTION OF SUPREME COURT. and interest thereon within one year; that

Where, on appeal to the supreme court the land was conveyed back to the adminis

from a judgment denying a motion to retax

costs, the amount involved is less than $2,500, trators, pursuant to this agreement, for the

and no other ground is shown why the court consideration of $3,300; that the agreement should take jurisdiction, the cause will be certiwas made by the administrators for the ben. fied to the court of appeals. efit of the estate, and not for their individ- Appeal from St. Louis circuit court; Jacob ual benefit; and that Thomas Banks had Klein, Judge. notice and knowledge of this agreement Action by John M. Jennings against the St. when he purchased the land. He paid $5.- Louis, Iron Mountain & Southern Railway 500 for the land, and the administrators ac- Company. From a judgment denying de fendant's motion to retax costs, it appeals. sheriff of Dekalb county, on the 7th day of Certified to the court of appeals.

April, 1880, sold the land in controversy to H. S. Priest and H. G. Herbel, for appel

one James Ewart for the sum of $60; and lant. Kehr & Tittmann, for respondent.

thereafter, on the 12th day of April, 1880,

said sheriff executed, acknowledged, and deGANTT, P. J. This is an appeal from the

livered to said Ewart a deed for said lands. judgment of the circuit court of St. Louis

Afterwards, tu wit, on the 27th day of Sepoverruling a motion of the appellant to retax

tember, 1880 (that being the first day of costs amounting to $36.25, which accrued the regular September term of said court, prior to the first appeal in this cause, the de

and the second term thereof after said sale cision of which is reported in 99 Mo. 394, 11

was mad"), the said sheriff filed in said court S. W. 999, and resulted in reversing and re

his report of the sale of said land to said manding the cause. A retrial was had, and

Ewart; and on the same day the parties to resulted in another judgment in the circuit

said partition suit filed in said court their court for plaintiff, which was affirmed in 112

motion to set aside said sale on the ground Mo. 268, 20 S. W. 490. As the amount in

of gross inadequacy of price, which motion volved is less than $2.500, and no suggestion

was by said court, on the 12th day of said is made or cause shown why we should, on

term, sustained, and the sale set aside and any other ground, takı: jurisdiction, the cause

annulled. And it was ordered by the court is ordered certified to the St. Louis court of

that the sheriff of Dekalb county sell said appeals. All concur.

real estate, at some term of the circuit court of said county, in accordance with the decree of partition aforesaid, and that he report his

proceedings, etc., in pursuance of which orBURDEN et al. v. TAYLOR,

der, the said sheriff afterwards, to wit, on (Supreme Court of Missouri, Division No. 1. the 5th day of April, 1881, sold said land to July 9, 1894.)

the plaintiff John E. Burden for the sum of SALE IN PARTITION - ValidiTY OF DEED BEFORE $45, and made report thereof to said court at

APPROVAL -SETTING ASIDE SALE NOTICE TO its September term, 1881, which report was PURCHASER-Tax DEEDS.

duly approved by said court, and said sheriff 1. A sheriff's deed in partition, made before approval of the sale by the court, is void; and

directed, by order entered of record, to exesuch sale may be set aside, upon report there cute a deed to said land to the said Burden, of to the court, without notice to the pur- in pursuance of which order the said sheriff, chaser.

on the 19th day of October, 1883, duly exe2. A tax deed containing no recitals show. ing that all the statutory requirements have

cuted, acknowledged, and delivered a deed been complied with is void on its face.

conveying the premises to the said Burden, 3. In ejectment, evidence to supply defects which deed he took under an oral agreement in a tax deed void on its face is inadmissible.

to hold for the use and benefit of the parAppeal from circuit court, Dekalb county;

ties to said partition suit, and under which Charles H. S. Goodman, Judge.

he now claims title to the premises. The de Ejectment by John E. Burden and others

fendant claims title under a quitclaim deed against Michael Taylor. There was a judg- from said Ewart to Albert E. Putnam, dated ment for plaintiffs, and defendant appeals.

August 19, 1880, and through mesne conveyAffirmed.

ances from him; also, under a tax deed from Brown & Imel and Casteel & Haynes, for the collector of Dekalb county to the said appellant. John E. Burden, for respondents. Ewart, dated November

The circuit court of Atchison county had BRACE, J. This is an action in ejectment jurisdiction of the proceedings in partition to recover 80 acres of land in Dekalb county, by reason of the fact that the greater part brought by John E. Burden, who claims the of the lands of which said Benjamin F. land in controversy as trustee for the other Graves died seised were situate in that counplaintiffs, who are the heirs at law and dev- ty, and none of the parties entitled thereto isees of Benjamin F. Graves, deceased. The resided in the counties in which such lands plaintiff Burden had judgment below, and were situated. The proceedings were reguthe defendant appeals.

lar, to judgment of partition and order of Benjamin F. Graves died in 1873, seised in sale, under the statute. Rev. St. 1879, c. 56; fee simple of the premises. On the 29th of Gen. St. 1865, c. 152. Under the statute, as July, 1878, a suit was instituted in the cir- it read in the revision prior to that of 1865, cuit court of Atchison county, by some of it was held that where the judgment of the said heirs and devisees against the others, court is for a partition of the property, and for partition of the real estate of said de- directs the land to be sold by the sheriff, the ceased, including the land in controversy, judgment is final, and an appeal therefrom the title to which became vested in them at must be taken at the same term at which the his death, in which suit judgment for parti- judgment is entered. Durham v. Darby, 34 tion, in due form of law, was rendered, and Mo. 447; Hinds v. Stevens, 45 Mo. 203. In order of sale of said lands made and entered the latter case a change in the law is noticed, of record at the September term, 1879, of which was carried into the revision of 1865; said court, by virtue of which judgment the and since then it has been uniformly held

-, 1870.

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that a report by the sheriff of his proceedings under the order of sale, and the approval of the court of that report, are required, and that until such approval the case is still pending. Pomeroy v. Allen, 60 Mo. 530; Parkinson v. Caplinger, 65 Mo. 290; Murray v. Yates, 73 0. 13; Turpin v. Turpin, 88

Mo. 337 Harbison"». Sanford, 90 MO. 477, 18

3 S. W. 20; Holloway v. Holloway, 97 Mo. 628, 11 S. W. 233, Buller v. Linzee, 100 Mo. 95, 13 S. W. 344. It was accordingly held in Pomeroy v. Allen, supra, that “in partition sales the sheriff must report his proceedings to the court, and until there is an approval or confirmation of the same no deed can be executed.” Although, under the statute of 1855, it was held that an appeal would lie from an order of sale in partition, it was also held under that law that the court retained control of the sale, and of the execution of the deed in pursuance thereof (Neiman v. Early, 28 Mo. 275; Fortune v. Fife, 105 Mo. 433, 16 S. W. 687), and that the court, having control over the execution of its own process, could, at the term to which the report of the sale was made, set the same aside without notice to the purchaser (Neiman v. Early, supra). We are cited to a number of cases in which it is held that sales under execution cannot be set aside without notice to the purchaser, but these cases are not in point. Patton v. Hanna, 46 Mo. 314. A confirmation of the sale in such cases is not necessary, but sales made under order of court in partition are made subject to the approval of the court. "Sales of land by order of the court, in proceedings for partition, are judicial sales. As such, they must be reported to the court for confirmation, and until confirmed they are of no effect.” Ror. Jud. Sales (2d Ed.) § 399. “Such approval is essential to the consummation of the sale. Without it, there is no authority for making any conveyance to the purchaser, and a conveyance without authority is obviously void." Freem. Jud. Sales, $ 43; Freem. Cotenancy, $8 544, 545; 2 Freem. Ex'ns, $ 311. It follows that Ewart, under whom defendant claims, acquired no title to the premises by his sheriff's deed, made in pursuance of the first sale, which, upon report thereof to the court, was set aside, and that the plaintiff Burden did acquire the title of the parties to the partition suit by his sheriff's deed, executed in pursuance of the second sale, which was approved by the court, and that he holds the legal title to the premises, unless the title of the said Graves was divested by the tax deed of November, 1870, aforesaid. That deed is as follows:

"State of Missouri, County of Dekalb-SS.: To All to Whom These Presents shall Come: I, Daniel Ransom, collector of the state and county revenue for the county of Dekalb and state of Missouri, send greeting: Whereas, the tracts of real estate hereinafter described, situated in the county of Dekalb and state of Missouri, were each subject to taxa

tion for the year A. D. 1867; and whereas, the state and county taxes on the same, assessed in the names of the persons hereinafter set forth, remained due the state, amounting to the respective sums hereinafter set forth, including the interest thereon; and whereas, on the day of 18—, a judgment was rendered in the county court of Dekalb county, in the name of the state of Missouri, against the real estate, to wit, the southeast quarter of the southeast quarter of section thirty-two (32), and the southeast quarter of the southeast quarter of section thirty-three (33), all in township 60, of range 31, the same being the amount of taxes due and unpaid upon each of said tracts for the year 1867, and for the interest and costs thereon, legal notice having been given of the delinquency by first publishing a list of all the delinquent land and town lots upon which the tax of 1867 remained due and unpaid, embracing the lands aforesaid, as the law directs; and whereas, on such judgment a precept was, on the day of

18, issued from the office of the clerk of said county, directed to the clerk of the county aforesaid, and the same was delivered to the said collector on the day of

, 18—, by virtue of which precept said collector did on the day of October, 1868, at the courthouse door of said county, in conformity with all the regulations of the statute in such cases made and provided, expose each of the above-described tracts of real estate, respectively, to public sale for the amount of the tax, interest, and costs due from each of the same, respectively, at which sale James Ewart, of Dekalb county, Missouri, being the best bidder for the least quantity of the same, respectively, as above set forth, and having paid then and there the said purchase money of each of the said tracts as stated, as appears on the certificate of purchase then and there made; and whereas, said described real estate has remained unredeemed up to this date, more than two years having expired since said sale: Now, therefore, in consideration of the premises, and of the several sums of purchase money by the said Ewart paid, as shown by the certificate of purchase above mentioned, and to me this day produced, I, Daniel Ransom, collector as aforesaid, do hereby grant, sell, and convey unto the said James Ewart, his heirs and assigns, forever, each and all of the above-described tracts of real estate purchased by him as aforesaid. and all the right, title, and interest of the owners at the time of said sale in and to each of the same, which are respectively assessed as above set forth, to have and to hold the same unto the said James Ewart, and to his heirs and assigns, forever, and subject only to the redemption in the case of infants and lunatics, as provided by law. Witness my hand and seal at office in Maryville this day of November, 1870. [Seal.) Daniel Ransom, Collector of Dekalb County."

As will be observed, this deed is a mere | was to supply the defects of a deed void on skeleton, and is defective in so many re- its face, so that it might thereby be reformed, spects that it would be tedious to particular- and operate as a valid deed, and convey the ize them. Although the statute under which legal title, was not admissible under the it was executed (Gen. St. 1865, c. 13, § 112) pleadings. The judgment is affirmed. All did not require the collector to make any re- Concur. citals in the deed, or prescribe a form therefor, and undertook to make the deed conclu- BARCLAY. J., concurs in the result. sive evidence that the statutory requirements in regard to the sale and transfer of a citi. zen's property for delinquent taxes had been complied with, except in the three particu

BURDEN et al. v. COOK. lars therein mentioned, yet it was held that,

(Supreme Court of Missouri, Division No. 1. as the power of the collector to make such

July 9, 1894.) transfer depended upon a compliance with those requirements, it was not within the

Appeal from circuit court, Dekalb county; Charles H. S. Goodman,

Judge. power of the legislature to dispense with

Ejectment by John E. Burden and others proof of such as were essential, and, unless against Samuel W. Cook. There was a judgit affirmatively appeared from the recitals of ment for plaintiffs, and defendant appeals. Af

firmed. the deed that the essential prerequisites of the statute had been substantially complied

Casteel & Haynes and Brown & Imel, for

appellant. John E. Burden, for respondents. with, the deed was void on its face, and would convey no title, and that such state- BRACE, J. This is an action of ejectment, ments of the collector, as that "legal notice

to recover 40 acres of land in Dekalb county, had been given as the law directs," or of his

brought by John E. Burden, who claims the

land as trustee of the other plaintiffs, who are conclusions as to other jurisdictional facts, the heirs at law and devisees of Benjamin F. amounted to nothing. Abbott v. Lindenbow- Graves, deceased, in which the plaintiff Burden er, 42 Mo. 162; Einstein v. Gay, 45 Mo. 62;

had judgment below, and the defendant ap

peals. This case is on all fours with that of Lagroue v. Rains, 48 Mo. 536; Large v.

Burden v. Taylor (an opinion in which is handFisher, 49 Mo. 307; Spurlock v. Allen, Id. ed down at this term of court) 27 S. W. 349, 178; State v. Mantz, 62 Mo. 258; Spurlock v.

except that in this case there is no claim of title Dougherty, 81 Mo. 171; Moore v. Harris, 91

under a tax deed. All the questions involved

are disposed of in the first paragraph of the Mo. 616, 4 S. W. 439. Under these authori- above opinion, and for the reasons therein ties, and others that might be cited, there can

stated the judgment is affirmed. All concur. be no question that the tax deed was void upon its face, and that the court committed no error in rejecting it. After the court had refused to permit the

PORTER V. REED et al. tax deed to be read in evidence, the defend- (Supreme Court of Missouri, Division No. 2. ant introduced Ransom, the collector, as A.

June 26, 1894.) witness, who testified that all the records of QUIETING TITLE-BILL OF PEACE-PARTIES-MARDekalb county, including the tax records,

RIED WOMEN. had been destroyed by fire, and offered to

1. Where plaintiff's grantor recovered in

ejectment against defendants on the sole issue prove by him, in detail, that the several pre

of legitimacy, and plaintiff has ever since been requisites of the statute had been complied in possession, without any claim being made by with before said deed was executed. De

defendants for many years, when they brought fendant also offered in evidence a copy of a

ejectment and dismissed it on plaintiff's being

ready for trial, and soon after repeated this, newspaper published May 28, 1868, contain

and now threaten to bring another action uning the land delinquent list for 1867, with less plaintiff makes them a satisfactory propo

sition, their sole claim to title being that they notice of application for judgment there

are the lawful heirs of M., which was decided on,-all for the purpose of validating said tax

against them in their action with plaintiff's deed, and rendering the same admissible as grantor, and the evidence as to which is lost by evidence, which offer the court refused, and operation of time and otherwise, a suit in in doing so committed no error. Without

equity may be maintained to have title finally

decided and prevent multiplicity of actions. stopping to notice the many particulars in 2. Married women, though under disability, which this offer failed to cover the prerequi- are proper defendants in a suit in equity to pre sites of the statute, pointed out in the brief

vent multiplicity of actions. of the counsel for the respondents, it is suffi- Error from circuit court, Jackson county. cient to say that the essential matters which Action by John Porter against Eliza J. Reed were thus offered to be proved by parol testi- and others. Judgment for plaintiff. De mony were matters of record, which could fendants bring error. Affirmed. only be proved by the records, or, in the case On the 21st of March, 1889, John Porter of their destruction, by evidence of their brought his action, returnable to the April contents. In this case there was no place term, 1889, of the circuit court of Jackson for such evidence. The issue was simply the county, Mo., against Eliza J. Reed and Jasgeneral issue in ejectment, in the trial of per Reed, her husband, Martha A. Witcher which the only thing in issue was the legal and Tandy K. Witcher, her husband, Fanny title; and evidence, the purpose of which Feltenbarger and Jacob Feltenbarger, her husband, Mary Miller, and George W. Miller. Miller in his lifetime as his housekeeper, was His petition, omitting the caption, was in left in occupancy of said land; that said the following words: "Plaintiff states that Fanny Russell had with her on said land the he is the owner of and entitled to the posses- defendants Eliza Jane Reed, known then as sion of, and is actually in possession of, the Eliza Jane Miller, Martha Ann Witcher, then following described land in Jackson county, known as Martha Ann Miller, Fannie FeltenMissouri, to wit, the west half of the north- | barger, then known as Fanny Miller, Henry east quarter of section seven (7), township Miller, and George W. Miller; that Eliza forty-nine (49), range (32) thirty-two. Also, Jane Miller afterwards, in 1867, was the part of the east half of the northeast quarter wife of one Henry Akers, Martha Ann Miller of said section seven (7), township forty-nine was, in 1867, wife of Tandy K. Witcher, and (49), range thirty-two (32), described as fol-Fanny Miller was, in 1867, wife of Jacob Fellows: Beginning at the northwest corner of tenbarger; that said defendants were the said last-mentioned half-quarter, thence run- children of said Fanny Russell, and they rening east to the northeast corner of the mained with their mother on said land durnortheast quarter of said section seven (7), ) ing the troubled times of the civil war, in thence south forty poles, thence west to the actual occupancy of said land; that after the west line of said east half of the northeast quar- war, and in 1867, said Hiram Miller, Henry ter of said section seven (7), thence north for- C. Miller, James W. Miller, and Ann Weathty poles to the beginning, --containing 20 acres, erby, formerly Ann Miller, brought suit in and being the north 20 of the east half of the ejectment against said Fanny Russell and northeast quarter of section seven (7), T. 49, her said children, Eliza Jane Akers, by the R. 32. Also, a part of the northwest quar- name of Jane Akers, and her husband, Henry ter of said section 7, T. 49, R. 32, bounded as Akers, and Fanny and Jacob Feltenbarger, follows: Beginning at the northeast corner her husband, Martha Ann and Jacob Feltenof the northwest quarter of said section 7, barger, her husband, and Henry and George thence running south eighty poles, thence W. Miller; that said suit was brought in the north, 6742° west, forty (40) poles, to a cor- circuit court of Jackson county, at Independner on the east bank of the Big Blue river, ence, and was numbered on the dockets of thence down on said Big Blue river to its in- said court as 7,380; that afterwards, on the tersection with the north line of said section | 30th day of September, 1869, said cause came 7, thence east to the beginning, --containing on to be heard before a jury, who found the about ten acres."

issues for the plaintiffs, and judgment was Plaintiff states that he has been continu- duly rendered thereon, and is of record in ously in the adverse possession and owner- Record 0, page 514, of the circuit court recship of said land since March 4, 1872, under ords at Independence, Mo., awarding said the following deeds, to wit: A warranty lands to said plaintiffs, Hiram Miller, Henry deed, dated January 12, 1872, recorded March C. Miller, James W. Miller, John D. Miller, 4, 1872, in book 93, page 578, in the recorder's and Ann Weatherby, and affirming their title office at Independence, Mo., executed by Hi- to the possession thereof; that on said judgram Miller, Henry C. Miller, James W. Mil- ment said parties were accordingly put into ler, John D. Miller, Ann Collin, John F. Col. possession of said lands; that said Ann lin, by J. Brown Hovey and George W. Bu- Weatherby then married one John F. Collin; chanan, their attorneys in fact; a deed from that plaintiff, by the deeds aforesaid, came Alfred J. Galbraith, by George W. Buchanan, into ownership of all the title of said parties his attorney in fact, dated also January 12, in and to said lands; that defendants never 1872, and recorded on March 5, 1872, in book made any pretense of claim to said land 88, page 578, of the records of Jackson coun- from the time plaintiff bought and took pos. ty, at Independence, Mo.; a deed from James session thereof till the 22d day of September, A. Etter and wife, Mary Jane, dated January | 1887, when they sued plaintiff in ejectment, 18, 1873, and recorded March 3, 1873, in book claiming title to said lands; that said Eliza 105, page 400, of the records of Jackson coun- Jane had in the meantime got rid of said ty, at Independence, Mo. Plaintiff states Henry Akers, and had married Jasper Reed; that by said deeds he obtained the entire that said case was brought in the circuit title to said lands, and avers that in the year court of Kansas City, Mo., and was num1838 all the title and the actual possession bered 10,606 in said court; that plaintiff was of said land was vested in one Henry Miller; put to heavy expense in employing attorneys that said Henry Miller died in said year 1858, and preparing to defend said cause; that or in January, 1859, and that he left no will; nevertheless, on the day when said cause was that at his death he left as his heirs his wid- set down for trial, defendants dismissed their ow, Elizabeth Miller, and his children, Hiram said cause without trial; that afterwards, en Miller, Henry C. Miller, James W. Miller, the 15th day of August, 1888, defendants John D. Miller, and Ann Miller; that George again sued plaintiff in ejectment for 80 acres W. Buchanan administered on the estate of of said land in the circuit court of Jackson said Henry Miller, deceased, and settled said county, Mo., at Independence, Mo., which estate without disposing of said land; that case was numbered on the docket of said at the death of said Henry Miller one Fanny court as 1,827; that plaintiff was again put Russell, who was living with said Henry to heavy expense in employing attorneys to

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