223 Mo. 209 | Mo. | 1909
This is a suit by Alonzo W., Florence A., and Thornton A. Ancell — the last named, a minor child of Thornton Ancell, deceased, suing by his guardian and curator, Thomas M. Williams— to set aside a certain deed made by their former guardian, Samuel Tanner, to 9.1 acres of land particularly described as follows: “Beginning at a point 1030 feet west of the northeast corner of section 4 at the intersection of the south right-of-way line of the Gray’s Point Terminal Railway and the west line of the public road lying in the northeast quarter of section 4, township 29, range 14 east, and extending in southwesterly direction along said right of way line 1280 feet, more or less, thence south 310 feet, thence northeasterly parallel to said right of way line 1280 feet to said public road, thence north along said road to the point of beginning, containing 9.1 acres, more of less, in Scott county, ’ ’ to the Southern Illinois and Missouri Bridge Company. And also to set aside all the proceedings in the probate court of said county in relation to the sale of said real estate to the. said Bridge Company and to divest the said Bridge Company of all right and interest and title in said real estate and vest the same in plaintiffs.
The petition states the minority of the plaintiff .Thornton Ancell and the appointment of Mr. Williams as his guardian and curator in'May, 1903, by the probate court of Cape Girardeau county. It is then alleged that Thornton A. Ancell left surviving him at his death his widow Margaret J. Ancell and the three minor plaintiffs as his only heirs at law; that the widow elected in the manner provided by law to be endowed absolutely of a share of the real estate in lieu of her dower therein and afterwards conveyed her one-fourth share of the real estate above described to the said Bridge Company. It is then alleged that the plaintiffs were
It is also charged that the defendant Bridge Company had knowledge of all the irregularities and illegalities attending the sale of said land and the false representations made by which the probate court was induced to order and approve said sale. It is then alleged that the defendant Bridge Company had no authority to own, condemn or acquire property in Missouri for the purpose of its terminal yards. That its claim to this property is. violative of article five of the
As to the charge of inadequacy of consideration paid for this nine acres by the Bridge Company, the circuit court found as a matter of fact “that the price paid by defendant corporation for said land was a reasonable and fair one, considering the circumstances then existing, and was in excess of the sum fixed by the appraisers, who were duly appointed by the probate court and in the manner provided by law made their report to said court. ’ ’ The court also found that the defendant Bridge Company in pursuance of said purchase expended large sums of money in good faith upon said property and the court further found that there was no fraud or conspiracy entered into by any of said parties, or between any parties in any way connected with the sale of said real estate and that the defendant Bridge Company was the owner in fee of the said 9.1 acres of land.
For convenience, the various assignments of error for which the plaintiffs ask a reversal of this judgment will be considered in the order of the brief of their counsel.
I. The first proposition advanced by the plaintiffs is, that the sale of the lands in suit was void because the plaintiffs had a homestead therein. This assignment is double. In the first place, it is insisted
In support of the first contention, to-wit, that a homestead is not real estate, it is sufficient to say that it is at variance with the statutes and the construction thereof by this court on numerous occasions.
In West v. McMullen, 112 Mo. 405, it was ruled by this court that upon the death of her husband, the homestead vested in the widow for her lifetime with the right of the minor children to occupy and enjoy the same with her until their majority. In that case it was said: “We think the statute vested in the widow and minor children, if any, an- estate for her life, and during their minority, and not a mere right of occupancy. Decisions upon statutes essentially different from ours throw no light upon the question. But our own decisions and those of the Vermont courts and of New Hampshire, under the act of 1868, determine that the homestead is a life estate, the widow may use or rent it out as she sees fit during her life. ’ ’
In Hufschmidt v. Gross, 112 Mo. l. c. 657, the decision in West v. McMullen was expressly approved and Kaes v. Gross, 92 Mo. 647, was disapproved and overruled. In support of their position the learned counsel cite us to Snodgrass v. Oopple, 203 Mo. 480, as, holding that a homestead was not real estate, but this; is a total misconception of the meaning of that case. Speaking for this court Valliant, J., in that case said: “On the trial., of the issues involved in this motion the court will begin with the necessary
This brings us to the second proposition involved in this first assignment, to-wit, that the probate court is without jurisdiction to order the sale of lands, belonging to minors for the purpose of raising funds for their education and for reinvestment.
In the discussion of this branch of the case, learned counsel say that this is at least a doubtful question and that this court has never passed on it directly. The argument in brief is that while the statute, sections 3504 and 3510, Revised Statutes 1899-, provides for the sale of the real estate of minors by their guardian for support and maintenance and education, and in the proper cases for reinvestments, the homestead statute deals with the particular subject, the homestead rights of the widow and children in the land, and that applying a familiar rule of construction the special statute should prevail over the general one, and that to hold that a homestead could not be sold at all for the education, maintenánce and support of a minor or minors would best subserve the purpose of homestead legislation. On the other hand, it is to be observed that sections 3504 and 3510 provide that the probate court, for the proper education, support and maintenance of minors, according to their means and
Like the learned counsel we have not been able to find any case in which the present contention has been made and passed upon by this court. The nearest approach to it to which we have been cited is the case of the matter of the final settlement of the estate of Christina Hesche, 73 Mo. App. 612. In that case the Court of Appeals says: “At the next term of the probate court after the sale, to-wit, November term, 1895, the administrator reported the sale as above set forth. The report was continued to the next term. After the report was filed an examination of the title revealed the fact that the deceased obtained title to the land under the will of her deceased husband, and that two of their children, who were minors, had a homestead right in the land. Thereupon the administrator, the guardian of the minors, and Mrs. Laville agreed upon the following settlement of the business: It was agreed that the value of the homestead right was $502.42; that Mrs. Laville should pay this amount to the guardian for her wards and in full satisfaction of their interest in the land, and that the administrator should receive and accept from Mrs. Laville the stun of $2,522.58 as the full amount due the estate on account of the purchase. This agreement was communicated to the probate court at its February term, 1896, and received its approval. It appears that in order to consummate this arrangement, the probate court made an order authorizing the guardian of the minors to sell their interest in the land to Mrs. Laville for the sum named. This settlement and adjustment was finally approved by the probate court.”
In case of condemnation the infant owner of a homestead would have the protection of the judgment of three disinterested commissioners or of a jury, whereas in the case of a proceeding like this through
II. But plaintiffs insist that even if the joróbate court had jurisdiction to order the sale of these nine acres, still the guardian’s sale and deed should be set aside on account of numerous other irregularities. First, no notice of the guardian’s application to the probate court to sell the land was given to or served on the plaintiffs or either of them, although they resided in Scott county with their mother at the time. Counsel seeks under this head to draw distinction between the statute in force in 1855 and our statute of 1899 in regard to the proceedings for the sale of real estate of minors, section 3505, Revised Statutes 1899. This court in Pattee v. Thomas, 58 Mo. l. c. 172, we think, disposed of this objection. Judge Napton, speaking for this court, said: “The objection that no notice of the intended application was given as required by the administration law is untenable. We presume that the Act of ’51 never intended to make the administration law any further applicable to guardians than would be consistent with the different positions occupied by administrators and guardians. To whom and for what purpose could a notice be required in the case of guardians? It would concern nobody
Under the statute of 1851, under which the Pattee case was decided, there was no exception, but the sale was required to be in conformity to the rules and regulations governing sales of real estate of deceased persons, whereas section 3505, Revised Statutes 1899, after making this same general provision, provides, “Except that there shall be no publication to parties in interest before the making of the order.” So that while the statute now expressly dispenses with publication to parties in interest, it had already been decided under the Act of 1851, which contained no such exception, that no notice was necessary to the minors of the application by their guardian. The decision of this court in that case has never been, to our knowledge, criticised or questioned. There is no presumption of law in this State that a guardian and curator is so interested personally that in a proceeding by a
III. Another defect in the proceedings urged by the plaintiffs is that because the petition was filed and the order, of sale was made on'the sapie day, therefore the sale was void. Or if not void, at least cogent evidence of fraud. It appears from the record that the petition for the sale of the nine acres was filed by the guardian, Tanner, on May 26, 1902, and that the order of sale was made on the same day and the appraisers appointed at that time. The report of the sale was made at the next August term and the deed ordered to be executed. This report of sale was accompanied by the certificate of the appraisers. The purchase of the mother’s interest was consummated on the 29th of July, 1902. In support of the proposition that the fact that the court ordered the sale on the same day the petition was filed rendered it void, we are referred by learned counsel to Hutchison v. Shelley, 133 Mo. l. c. 412, and to sections 3505 and 148, Bevised Statutes 1899. But it is obvious as said by Judge Napton in Pattee v. Thomas, that these provisions of the administration law were intended to apply to administrators, and not to the case of a guardian applying for a sale of his ward’s land. This whole subject has been so often examined, reviewed and discussed that we can do no better than adopt the language of this court in Henry v. McKerlie, 78 Mo. l. c. 429: “When the sale has been prematurely approved in the probate court, this fact was by the earlier decisions regarded as equivalent to no approval at all. The sale was regarded as absolutely void and passing no title, either legal or equitable. [Wohlien v. Speck, 18 Mo. 563, and a number of cases.] Whatever equity inured to the pur
Inasmuch as the law did not require service of a notice upon these minors of the application for the sale of this land, we hold that a failure to continue the case from the May term to the August term before making the order of sale was at the most an irregularity which did not go to the jurisdiction of the probate court and therefore did not render the sale void.
IV. It is next insisted that this sale should be set aside because the guardian’s petition for the order
It is next insisted that the land was not appraised. As to this the guardian filed his report of sale and certificate of appraisement showing' that Vancient Heiserchier, Casper Miller and Joseph Miller, on the 26th day of May, 1902, appraised this land at forty dollars per acre, and on the trial of this case these appraisers were sworn as witnesses, and when their attention was called to their appraisement their recollection was that at the time they had appraised a twenty-seven acre tract and did not recollect that they had appraised the nine-acre tract. But the fact that they had forgotten that they appraised this nine-acre tract did not in the least overthrow their appraisement. Upon being re-examined they still testified that this land at that time was worth forty dollars per acre for farming purposes, and clearly a sale ought not to be overturned because an appraiser, years afterwards, should forget that he had been called upon to state the value of a piece of land in his immediate neighborhood. Anyone might forget a matter in which he had no more interest than this witness had in the appraisement of that land. He testified that he was selected, as an appraiser by Mrs. Rafferty, the mother of these children. He had no occasion to go back to look at the land after having been appointed as an appraiser for the reason that he had lived within a mile and a half of it all of his life, and we are inclined to think that there is little merit in this objection. The evidence shows that Mrs. Rafferty received $90 per acre for her one-fourth interest in this land and her right to possession during her lifetime, and that the children
And the same observation can be made in regard to the question of fraud. Circumstances which appear to learned counsel for the plaintiffs to indicate a fraudulent purpose on the part of the guardian of these children to sell this land for less than its value to the defendant bridge company have been marshaled and presented with great ability, but on the other hand it appears in evidence that this bridge company having obtained its charter to build its bridge over the Mississippi river and having received the permis
The learned circuit judge was in a far better position to pass upon the question of the adequacy of the consideration paid by the defendant bridge company for this land at the time and under the circumstances than this court can possibly be. His acquaintance with the witnesses and his opportunity to observe their manner of testifying, their interest in the cause, and their connection with the several parties to the suit also made him the proper tribunal to pass upon the
Finally it is insisted that the Bridge Company had no corporate power to purchase and take the title to the land in controversy. In regard to this proposition this court has now passed upon it three times and we must decline to again enter upon an investigation of that question. If we are right in affirming the judgment upon the other propositions, which have been advanced and discussed in this opinion, then we are clearly of the opinion that, these plaintiffs having sold this land to the Bridge Company through their lawfully appointed guardian and curator and having received the consideration above named on the merits of the question of the corporate capacity of the defendant bridge company to purchase and hold this land, it does not lie in the mouth of the plaintiffs to assert that want of corporate power. Ve have carefully gone through all the assignments of error and the record in this case and are of the opinion that the judgment should be, and it is accordingly, affirmed.