Long v. Joplin Mining & Smelting Co.

Sherwood, C. J.

The defendant was successful in the ejectment brought by plaintiff', hence this appeal.

1. deed, of an adbonis non.

I. An administrator de bonis non cannot be appointed for the sole purpose of making a deed which his predecessor had neglected to make; for this reason, the deed made by M. M. James to defendant was a mere nullity. Grayson v. Weddle, 63 Mo. 523 .

2. _. equitachaserwi°/hotit deedi

II. But, though the deed of James was inoperative, did not accomplish the purpose which induced his appoiutmeiA> yet- it is by no means clear that plaiutiff sllould have recovered the land sued for. The records of the county court show that, at the November term, 1854, an order was made as follows : “This day comes Clisby Robinson, public administrator of Jasper county, and ex officio administrator of the estate of Alexander Orchard, deceased, and files his report of the sale, of real estate belonging to said estate, and also a sale .bill of said real estate, which is approved by the court.” A subse *428 quent entry, made February, 1855, showed permission granted by the county court, to the public administrator, to amend his report, and a further entry, made August 25th, 1858, shows the final settlement of the administrator, which contains a description of the land in controversy.— forty acres — and the person to whom it had been sold. William T. Orchard, under whom defendant claims by means of deeds of trust, executed by Wm. T. Orchard, in the year 1855, to Jno. R. Chenault and to Wm. M. Chenault, in August, 1858, and sales under such deeds in 1867 and 1874, at which sales those under whom defendant claims, purchased the property in suit. Alexander Orchard, mentioned in the county court proceedings, died in 1853, and he was the patentee of the land, the patent therefor having issued in 1852. Plaintiff' claims under a quitclaim deed from his heirs, executed in 1872. The land in controversy has had no occupant or improvement from 1853 up to 1870, in which former year a small hut erected by Alexander Orchard, assisted, perhaps, by Jeremiah and Wm. T. Orchard, was destroyed or removed. In 1870, however, lead,in large quantities, having been discovered on the tract in question, it has become very valuable, and together with adjacent tracts, has become the seat of a populous town called “ Joplin City,” an addition to that town covering a portion of the land sued for, having been laid out in 1872, anterior to plaintiff’s purchase from the heirs. We entertain no doubt that Wm. T. Orchard, by his purchase at the administrationjsale, acquired at least an equitable or beneficial interest in the premises sold; and although those premises are not properly designated in the order approving the report of sale, yet the final settlement shows the description of the land and to whom sold; and this is amply sufficient. That William T. Orchard acquired, by his purchase of and payment for the land, an equitable interest therein, is shown by our own adjudicated cases. Bartlett v. Glasscock, 4 Mo. 62 ; Castleman v. Relfe, 50 Mo. 583 ; Grayson v. Weddle, 63 Mo. 523 . We do not under- *429 3tand the ease of Wohlien v. Speck, 18 Mo. 561 , as going to the extreme of asserting that no equitable title passed to the purchaser at an administration sale, and after the regular approval thereof. The question in that ease was upon the sufficiency of the legal title of plaintiff, to maintain ejectment, where the approval occurred at the same term as the sale, then regarded as a fatal defect; and where no deed had been delivered. The non-approval of the sale at the proper term was held as one of the chief impediments to success in a proceeding in equity, by the same plaintiffs, and the intimation clearly given that if the approval had occurred at the proper term a different result might have followed. However that may be, the doctrine was well settled in this State at that time, that a purchaser at an administration sale did acquire, upon the approval of the sale and the payment of the purchase money, an equitable title to the premises sold, though no deed had been made. Bartlett v. Glasscock, supra. The authority of that ease was not called in question in the Speck-Wohlien case, and the doctrine that the purchaser at an administration sale, who, in conformity to the order of approval, has paid the purchase money, has an equity which is a sufficient basis whereon to base equitable interposition, has since found frequent recognition in this court. Grayson v. Weddle, Castleman v. Relfe, supra; State v. Towl, 48 Mo. 148 . And most assuredly it would be a grave and great reproach on the administration of public justice, if a purchaser at a probate sale regular in every particular, who has done all that was necessary on his part, and having, in consequence of the death of the administrator, who had fully administered, neither ground for nor adequate relief at law, should appeal in vain to a court of equity for that relief, which was denied him in every other quarter. And if it be admitted that an equity is acquired by the purchaser at administration sale, although no deed be made, this admission paves the immediate way for the further admission that a court of chancery will, under appropriate circum *430 stances, call into active exercise its numerous and flexible powers, in affording that measure of relief, incapable of being afforded, or furnished, by other jurisdictions. In other words, whenever you establish an equity, you thereby, and ipso facto, establish the consequent right to have that equity given recognition and protection. We have no hesitancy, therefore, in holding that defendant was justified in invoking equitable relief in support of the case, made by its answer, and this more especially as plaintiff is confessedly a purchaser, with such notice, at least as was sufficient to put him on inquiry, and which, if pushed with reasonable diligence, would inevitably have led to the discovery of defendant’s equitable title.

8 _-existence -deWihivery°of1í when presumed.

III. But there is no slight reason for believing that defendant is the holder of the legal, as well as the equibable, title to the premises in controversy. The order approving the report of the sale reaj shows that the public administrator filed, at the same time, “ a sale bill of said real estate.” As no “ sale bill ” of real estate is ever executed by an administrator, we are of the opinion that those words can reasonably refer to nothing else but the deed for such real estate, and that the clerk of the county court, through ignorance or inadvertence, used inappropriate words. If it be granted that the inference here drawn, as to the proper meaning of the words referred to, is not an unreasonable one; that a deed, in due form, was executed by the public administrator; the delivery of such deed may ' well be presumed; and this on several grounds :

1st. It is but in accord, with the usual course of business, for the administrator to deliver the deed on receipt of the purchase money; that the purchase money was paid, is shown by the record. The principle is a familiar one, that if you prove the existence of one fact, that-another, its usual concomitant in the ordinary course of business, will be presumed. 1 Gif. Ev., § 40, and cases cited. Mr. Justice Story, in this connection, remarks; “By the general *431 rules of evidence, presumptions are continually made in eases of private persons, of acts, even of the most solemn nature, when those acts are the natural result, or necessary accompaniment, of other circumstances. In aid of this salutary, principle, the law itself, for the purpose of strengthening the infirmity of evidence, and upholding transactions intimately connected with the public peace, and the security of private property, indulges its own presumptions.” Bank v. Dandrige, 12 Wheat. 64 .

2nd. The delivery of the deed may be presumed, because Olisby Robinson, being public administrator, it was his obvious duty, on receiving the purchase money for the land, to have, as a concurrent act, delivered to the purchaser, the necessary conveyance; the presumption at once arises that he did not omit the performance of such a plain official duty.

In Hartnell v. Root, 19 Johns. 345 , Mr. Justice Wood-worth said: i‘ The general rule is that where a person is required to do a certain act, the omission of which would make him guilty of a culpable neglect of duty,it ought to be intended that he has duly performed it, unless the contrary be shown.” In that case, an action of trespass, it was presumed that the officer against whom the suit was brought, had made the requisite levy during the life of the execution, and, consequently, that he was no trespasser, though he sold the property after the return day thereof. In Jackson v. Shaffer, 11 Johns. 517 , it was contended that the sale was void, because no prior levy was shown, but the court said: “ It nowhere appears there has not been a levy, and if it were necessary they would, under the circumstances of the case, presume it to have been made.” So also in Lord Halifax’s case, on information against him, for his refusal to deliver up the rolls of the auditor of the exchequer, the court put the plaintiff upon proving the negative, viz: That his Lordship did not deliver them; “ for a person shall be presumed duly to execute his office ’till the contrary appear.” Bull N. P., p. 298. And in an *432 action against a sheriff for a false return, the burden of proving the negative allegation of falsity devolves on the party asserting it. Clark v. Lyman, 10 Pick 47.

. 3rd. A person is presumed to accept a plain, absolute conveyance without conditions, the acceptance of which is beneficial to him-. Bank v. Bellis, 10 Cush. 276 ; 3 Wash. Real Prop. 266; Foley v. Howard, 8 Clarke (Iowa) 56, and slight acts evidencing such acceptance will suffice. Bank v. Dandrige, supra. Now the acceptance of a deed presupposes its delivery, and the one may, therefore, be presumed as well as the other. And the acceptance of a deed from the public administrator is sufficiently shown in the present instance by the payment of the purchase money, and by the deeds of trust executed in 1855 and 1858 by Wm. T. Orchard, the purchaser; acts which cannot be reasonably accounted for, save upon the supposition of the acquisition of the title.

These and similar presumptions are indulged in, as Mr. Justice Story says in Bank v. Dandrige, supra “according to the maxim, omnia prcesumuntur, rite et solemniter esse acta donee probetur in contrarium.” There is a class of cases where juries are instructed, or advised, to presume conveyances between private individuals, in favor of the party proving a right to the beneficial enjoyment of the property whose possession is consistent with such presumption, 1 Grlf. Ev., § 46, and cases cited. This case however, is not regarded as falling within that category; for here owing to the nature of the land, there has been no occupation or cultivation; and the conveyance is not between private individuals. But in the case at bar the existence of the conveyance, and the payment of the purchase price, having as we think, been established by the record, we are only called on to presume that the regular and natural order of business was observed, and that a public officer was not guilty of a culpable omission of duty; these are presumptions which in the light of the authorities cited may well be indulged in, especially as some twenty years *433 had elapsed between the approval of the sale and the hearing in this cause; especially, too, as the public administrator and the purchaser died in 1861, and since that time the property has been sold under two deeds of trust executed by the purchaser during the life of the administrator, the one deed being executed some three years before the final settlement, and the other the next day thereafter. And what adds additional strength to these presumptions, is that those whose title was divested by the administration sale; whose title plaintiff represents, made no claim to the property until years after it had been sold under one deed of trust, discovered to be exceeding valuable, and had become the busy seat of population and of mining industry.

4. ADMINISTRATION Iffectof'fina^settiement

IV. But it is urged that the final settlement, taken in its broadest extent, only shows that one-half of the land ^ WES S°W t0 WlQ. T- Ol’Chal’d. Ill reference to this, it may be observed that the administration sale, being duly approved, vested as above seen, the equitable and beneficial title in the purchaser, and if the presumptions respecting the deed of the public administrator and its delivery have been correctly indulged in, then all the right, title and interest which the deceased had in the property, both legal and equitable, passed to the purchaser. 1 R. S., p. 147, § 35. If the public administrator, after the sale and its approval, and the delivery of the deed, saw fit, on the representations of the purchaser, to.remit one-half of the purchase price, that would not divest the title already vested; that was a question altogether between the public administrator and those who were interested in the proceeds of the sale. But further regarding that point: Under our more recent adjudications, the same liberality of intendment is allowed as to the proceedings of a county court respecting matters within its jurisdiction as to any ■other court. Johnson v. Beazly, 65 Mo. 250 , and cases cited. It will be intended, therefore, that due notice of *434 the final settlement was given; this notice when given had the effect to bring before the court, at the term of the final settlement, “ creditors and all others interested in the estate.” 1 R. S. p. 162, §§16 and 17. As that" final settlement passed unchallenged at the hands of those thus summoned to attend, as no appeal was taken therefrom, we must intend that the question whether the deceased was the owner of more than one-half of the real estate was then and there upon sufficient testimony incidentally passed upon and determined, determined in a manner not at variance with the balance sheet which the public administrator represented to the court for its approval.

Judgment affirmed.

All concur except Hough, J., not sitting.

Affirmed.