Davis v. Turner

The opinion of the court was delivered by Horton, C. J.: This was an action to recover certain real estate, brought by the plaintiffs in error, as heirs of one Merrill Davis, deceased, against the defendant in error, A. J. Turner. The plaintiffs claimed the lands as the heirs of the intestate, and by deeds from other heirs. The title of the defendant was based upon the deed of the administratrix of the intestate, by virtue of proceedings had in the probate court of Jackson county, at its July term, 1864.

The material questions in the case relate to the validity of the proceedings of the probate court, and the form of the conveyance of the administratrix. August 7th, 1861, Merrill Davis and his wife Frances Davis executed their mortgage to Jason Richardson on certain real estate in Jackson county, including the premises in controversy, to secure the note of said Merrill Davis for $330.50, with interest at fifteen per cent, per annum.

July 19th, 1863, Merrill Davis died, leaving the note unpaid. August 29th, 1863, the widow, Frances Davis, was appointed administratrix of the estate of the deceased.

June 15th, 1864, Jason Richardson, mortgagee, sold, assigned and transferred in writing his mortgage of August 7th, 1861, against M. and F. Davis, to one John Armstrong. October 5th, 18fi4, Frances Davis, administratrix, executed to said John Armstrong a conveyance of the land in dispute. This deed was based upon proceedings had in the probate court of said Jackson county, under the provisions of §1, ch. 60, laws of 1864. March 15th, 1871, the defendant purchased the property from a grantee, deriving title under Armstrong.

I. It is contended that no competent evidence was introduced upon the trial to prove the appointment of Frances Davis as administratrix, because the original letters of administration and bond of the administratrix were not produced, nor any certified copies thereof. The proofs to establish this fact were the records of the probate court, showing her appointment August 28th, 1863, as such administratrix, in these words:

“Now at this day comes Frances Davis-in her own proper person, and presents, that Merrill Davis, late of the county of Jackson and state of Kansas, deceased, died intestate, having whilst living and at the time of his death, goods and chattels, lands and tenements, which should be disposed of according to law. She asks, therefore, that an administrator should be appointed to settle and dispose of said estate according to law. The court, upon due deliberation and being fully advised in the premises, appoints Frances Davis to be administratrix of all and singular the goods and chattels, rights and credits, lands and tenements, which were the property of the said Merrill Davis at the time of his death; and the court orders that the said Frances Davis execute a bond in the penal sum of one thousand dollars.”

Due appointment lettere’of1 atoifriistration are not produced. The bond record of said court, containing the record or copy of the bond of such administratrix is in the usual form, and is in the sum of $1,000, and signed by the said Frances Davis and two sureties, and the recognition by the probate court of said Frances Davis after said date as the administratrix of the estate, in the usual form and manner. Under §12, eh. 87, laws of 1870, the books and record required by law to be kept by any probate judge may be received in evidence in any court; hence, we think upon this testimony a sufficient showing was had to prove the appointrnent of the widow as administratrix. It is true, ... the letters of administration do not seem to have been of record, nor was the original bond, which is required to be preserved in the regular files of the court, presented; but as evidence was afterward produced that the probate judge in office during all these proceedings loosely and imperfectly kept the records, the letters may have been delivered without being recorded, and the original bond, lost. In any event, none of these papers were in the possession of the defendant, nor was he the legal custodian of them, and the court rightfully received the testimony offered.

Parol evidence, Xbi“toashow anlm-aérto II. It is claimed that the conveyance of October 5th, 1864, is void, because the records of the probate court show no application for any transfer or conveyance of the premises to the mortgagee or his assigns, nor any order allowing, authorizing, or approving the deed. As the case was tried by the court below without a jury, upon parol evidence, and the court found generally in favor of the defendant and against the plaintiffs, it will be presumed that the court found all the facts in favor of the defendant, so far as there was sufficient evidence to prove them. (Cory and Kimball v. Wirth, ante, p. 10.) And upon this presumption we may justly assume that the court found from the evidence of W. S. Hoaglin, the probate judge in 1861-4, that a proper application in writing was presented and filed with said officer at the July term of the court, 1864, under §1, ch. 60, laws of 1864, asking the court to order the administratrix to convey to John Armstrong, the assignee of the mortgagee, all the right, title and interest of the estate of Merrill Davis, deceased, to said property, and that thereon the court made in writing in due form a valid order allowing such application, and ordering a conveyance within the provisions of the statute; that thereafter the said deed of October 5th, 1864, was executed, and thereon such conveyance operated as an extinguishment of the claim of the mortgagee and his assign under the said mortgage of August 7th, 1861. As it was satisfactorily shown by the testimony that the records and other papers of the probate court, during the time of the administration of this estate, were in great confusion and very negligently kept, and many of them were not in the office, this warranted the presumption that the application for sale or transfer, and the record of the order of the court granting it, had been lost, and justified the admission of the testimony of the ex-probate judge, showing what proceedings did actually take place before him in this matter, and the contents of the written application and orders made by him. (Jackson v. Crawford, 12 Wen-

dell, 533.) It is immaterial whether the application ^ 1 1 f°r the conveyance was signed by the administratrix or the assignee of the mortgagee. If signed by the assignee, the statute was literally complied with. If the administratrix made the application, and thereafter the assignee of the mortgagee accepted the deed under such application and order of the court in satisfaction of his claim, he virtually made the act of such administratrix his own, and there was a substantial compliance with the provision of the statute.

III. It is asserted that the deed of conveyance of October 5th, 1864, is inoperative, and does not convey the title and interest of the estate of Merrill Davis, deceased, because it purports to be the individual deed of Frances Davis. This really is the serious and doubtful question in the case, as the deed is informally and inartistically drawn; but, construing its language together, we think we may fairly hold that it conveyed to the grantee all the right, title and interest of the estate of the intestate to the property therein named. It states that it is made by Frances Davis, administratrix of the estate of Merrill Davis, deceased, by virtue of the proceedings had at the July term, 1864, of the probate court in and for the county of Jackson and state of Kansas; and as we must assume upon the finding that due proceedings were had at said July term by the probate court to transfer and convey this identical land to the grantee named therein, this reference and statement, with the other words used in the deed, make it the official deed of the administratrix, and more than the individual deed of the grantor. Even if the deed is defective, it is not necessarily void. (Bobb v. Barnum, 59 Mo. 394 .)

IV. Finally, it is urged that the conveyance is void, for the reason that the provision of the statute of 1864, under which it was executed, never went into effect, or became a law. The argument of counsel is, that no time is fixed by the act itself when it shall be in force; that so much of ch. 37, laws 1863, as prescribes the time when acts thereafter passed shall go into effect, is in violation of §16, art. 2 of the state constitution, as the subject of that act is not sufficiently expressed in its title. The title is in these words: “An act to define what shall constitute the publication of laws.” The constitution ordains that no law of a general interest shall be in force until the same is published. (§19, art. 2.) The act of 1863 provides for the publication of the laws and joint resolutions of the legislature; and adds, that such laws and joint resolutions shall take effect and be in force from and after the publication is ordered, when not otherwise specially provided. There is such a connection between the general subject of the act, all its provisions and the title, that the law is clearly valid and constitutional.

The other matters referred to by counsel are not sufficiently important to require comment.

The judgment of the district court will be affirmed. All the Justices concurring.