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Nebel v. Bockhorst.

ing for the sale of the real estate, or so much thereof as will pay the debts and legacies of such deceased person." Succeeding sections of this article definitely prescribe the procedure for obtaining such an order of sale. And section 154 provides that if the executor or administrator fail to make an application for such sale, any creditor or other person interested in the estate may make the application, giving twenty days notice to the executor or administrator.

It has been repeatedly held that the probate court has exclusive jurisdiction to order the sale of lands of a decedent for the payment of his debts; that the aforesaid provisions of the administration law furnish a full and ample remedy for any deficiency in personal assets to pay such debts, where there is real estate in the hands of heirs or devisees within the jurisdiction of the probate court, and that resort must be had to the methods there pointed out to subject the real estate to sale for such purpose (Tittering v. Hooker, 58 Mo. 593; French v. Stratton, 79 Mo. 1. c. 562; Priest v. Spier, 96 Mo. 111; Scott v. Royston, 223 Mo. 568, 123 S. W. 454) subject of course, to the right of appeal to the circuit court.

What is said as to the sale of lands for the payment of debts applies with equal force to the sale thereof for the payment of legacies (section 150, supra). And as the petition before us proceeds entirely upon the theory that there is here a monetary legacy remaining unpaid, and seeks to have the land ordered sold for the payment thereof, we think it quite clear that the relief sought could be afforded, if at all, only in the probate court, and that the circuit court is without jurisdiction in the premises.

While a suit in equity may sometimes be maintained in respect to matters which would ordinarily appear to be within the jurisdiction of the probate court, this is true only in those rare instances where the provisions of the administration law fail to furnish a com

Jennings v. Overholt.

plete and adequate remedy in the premises, and where relief may be afforded only in a court of purely equitable cognizance. The following cases will illustrate: May v. Pearson, 121 Mo. App. 120, 97 S. W. 612; Lemp Brewing Co. v. Steckman, 168 S. W. 226; Scott v. Royston, supra. See, also, Stanton v. Johnson's Estate, 177 Mo. App. 1. c. 57, 163 S. W. 296.

Where, as here, the administration law has definitely provided a method of proceeding in the probate court for the attainment of the very object sought to be attained by a suit in equity in the circuit court, it seems clear that the latter court is without jurisdiction. Were the object of the suit not to enforce the payment of a legacy by the sale of the devised lands, but to impress a trust upon such lands for the support and maintenance of Eliza Sattmann during her lifetime, to the extent of the provision sought to be made for her by the testatrix, an altogether different question would be presented, and one as to which we need now express no opinion. But as the suit proceeds, we are of the opinion that the circuit court had no jurisdiction to entertain it.

It results that the judgment below should be affirmed, and it is so ordered. Reynolds, P. J., and Nortoni, J., concur.

D. M. JENNINGS et al., Appellants, v. J. S.
OVERHOLT, Respondent.

St. Louis Court of Appeals, January 5, 1915.

1. REAL ESTATE BROKERS: Employment: Sufficiency of Evidence. In an action by a real estate broker for a commission for having procured an exchange of land, evidence held to show that defendant engaged plaintiff to find some one with whom he might make a trade or deal to dispose of his land.

2.

Right to Commission: Special Contract. Under a special contract requiring a real estate broker to dispose of

3.

Jennings v. Overholt.

property upon certain terms, the owner may, in good faith, insist upon the exact price or the fulfillment of other terms of the contract, and refuse to sell to the broker's customer on modified terms, and if the broker, after full opportunity, fails to perform, the owner, as a new deal, may sell the property to the broker's customer on more favorable terms, without incurring liability for a commission; but if the owner deals with the broker's customer at a lower price or upon other terms, while the agency continues and the broker is working with the customer on the contract terms, the owner will be liable for a commission.

:

: Exchange of Land. A real estate broker, authorized generally to effect an exchange of land, but not to fix the terms, who put defendant in communication with a landowner with whom defendant made an exchange, was entitled to a commission, notwithstanding the trade effected differed from the one suggested by the broker to his customer. 4. EVIDENCE: Original Memoranda: Res Gestae. A minute or memorandum in writing, made in the usual course of business, at the time when the fact recorded took place, is admissible in evidence, if authenticated by the oath of the party making it, when the surrounding circumstances make it probable that the fact recorded occurred; and hence, in an action by a real estate broker for a commission for having procured an exchange of land, his entry in a small book carried in his pocket, made in defendant's presence, when he suggested that defendant see the party with whom the exchange was finally made, and in the usual course of business, was admissible as part of the res gestae.

Appeal from Audrain Circuit Court.-Hon. James D. Barnett, Judge.

REVERSED AND REMANDED.

Arthur Bruton and E. S. Gantt for appellants.

(1) The court erred in excluding plaintiffs' exhibit number 7. Borgess Inc. Co. v. Veete, 142 Mo. 560; Anchor Milling Co. v. Walsh, 108 Mo. 277; Robinson v. Smith, 111 Mo. 205; Weels v. Hobson, 91 Mo. App. 379; Gulurulator v. Rettalaclo, 86 Mo. App. 184. (2) The court erred in modifying plaintiffs' instruction number 1 and refusing plaintiffs' instruction num

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Jennings v. Overholt.

ber 2. Grether v. McCormick, 79 Mo. App. 329; Wetzell & Griffith v. Wagoner, 41 Mo. App. 509; Hovey & Brown v. Aaron, 133 Mo. App. 573; McCormick v. Obanion, 168 Mo. App. 606; Lane v. Cunningham, 171 Mo. App. 17. (3) The court erred in giving defendant's instructions numbers 1, 2 and 4. (4) The verdict is against the evidence and the weight of the evidence.

E. C. Anderson for respondent.

(1) There was no error committed on the part of the trial court in excluding plaintiffs' exhibit number 7. 17 Cyc. 380; Daum v. Neumeister, 2 Mo. App. 597; Gregory v. Jones, 101 Mo. App. 270. (2) The trial court committed no error in modifying plaintiffs' instruction number 1, and refusing plaintiffs' instruction number 2. 28 Mo. App. 61; 162 Mo. App. 284; 164 Mo. App. 454; 168 Mo. App. 606. (3) The trial court committed no error in giving defendant's instructions numbers 1, 2 and 4. Ramsey v. West, 31 Mo. App. 676; Real Estate Co. v. Real Estate Co., 144 Mo. App. 620; Crain v. Miles, 154 Mo. App. 338; Duncan v. Hills, 155 Mo. App. 702; 19 Cyc. 257. (4) The verdict is supported by the evidence and the weight of the evidence. State v. Espenschied, 212 Mo. 215; State v. Fraught, 140 Mo. App. 369.

ALLEN, J.-This is an action by a firm of real estate brokers to recover a commission as for having procured an exchange of lands of the defendant for other lands. The trial before the court and a jury resulted in a verdict and judgment for defendant, and the case is here upon plaintiffs' appeal.

Plaintiffs conducted a real estate business in Centralia, Missouri, and on April 18, 1911, defendant, then residing in Texas, where he owned 320 acres of land, wrote plaintiffs asking for a list of farm lands for

Jennings v. Overholt.

sale near Centralia, and inquiring whether plaintiffs had for sale a farm for which his land in Texas might be taken in part payment. To this communication plaintiffs promptly replied, and further correspondence passed between the parties during the early part of 1911. And in July, 1911, defendant made a trip to Missouri, at which time he called upon plaintiffs in regard to disposing of his land. During this period, however, nothing was found to suit defendant as an exchange for his property.

In January, 1912, defendant rented a farm about four miles north of Centralia, the lease for which was drawn in plaintiffs' office, and early in March of this year he moved from Texas to this farm. Upon arriving in Centralia he procured plaintiffs' assistance in making out a claim for alleged freight overcharges; and plaintiffs' evidence is, that at this time the defendant said to them: "As I have moved to your country, I want you fellows to get busy and get rid of my 320 acres in Texas," urging the plaintiffs to "go after it hard," and saying that he wanted "a deal;" and that plaintiffs assured him that they would do the best that they could in the premises. And the testimony for plaintiffs is, that they listed defendant's land in their office, and that defendant agreed to pay the usual commission for selling or exchanging such land.

On March 29, 1912, one of the plaintiffs, L. C. Jennings, met defendant in Centralia and suggested to him that a deal might be made with one Robert Angell, living a few miles north of the farm which defendant had rented, and who was contemplating moving to Texas. It appears that Angell owned two tracts of land in that vicinity, one of fourteen acres and the other of eighty acres, and that the fourteen acre tract had been listed with plaintiffs for sale. Plaintiff, L. C. Jennings, testified that he mentioned both tracts to defendant when he suggested that the latter see Angell, saying, however, that he did not know whether

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