This is an action in ejectment for a tract of land in Knox county, in which the plaintiffs obtained judgment in the court below for five eighths of the premises, and the defendants appeal.
The facts are, that in 1849, John Bone, Sr., being seized in fee simple of the land in dispute, died, having first made a will by which he devised the same in •manner following, to-wit:
“I also give and bequeath to my granddaughter the following real estate, to-wit: The east half of the northeast quarter of section 33; also the southwest*179 quarter of the northeast quarter of section 33, all in township 63 of range 11, containing 120 acres, together with all the improvements thereunto appertaining, to have and to hold the same to her and her children, heirs of her body forever.”
The granddaughter mentioned in this provision of his will was Elizabeth Bone, wife of John Bone, Jr., having at the time eight minor children.
By an act of the general assembly approved February 27, 1855, entitled “an act for the benefit of Elizabeth Bone and her children” reciting in the preamble the devise aforesaid, it was provided: “That John Bone and Elizabeth Bone, his wife, may, and they are hereby authorized to, sell said tract, given to her and to her children, heirs of her body, by John Bone, Sr., deceased, either at public or private sale, and convey the same to the purchaser or purchasers in fee simple absolute, by deed or deeds, executed and acknowledged in the usual form, free from all claim and title of the children of said Elizabeth, now or hereafter, the said John Bone first giving bond with sufficient security, payáble to the state of Missouri, in double the value of said land, to be approved by the county court of said county, conditioned that, upon the sale of said land, he will faithfully reinvest the money arising from said sale in real estate in said state within a reasonable time thereafter, and take the title to the same to said Elizabeth Bone and to her children, heirs of her body, as said lands are devised to them by said will, which bond shall be filed in the office of the clerk of the county court, and may be sued on by any person aggrieved by the unfaithful performance of said John Bone.” Laws 1855, p. 558.
Afterwards on the seventh of March, 1859 three of Elizabeth Bone’s children having become of age, the said John Bone, Jr., was appointed by the county
Afterwards on the fourteenth day of July, 1859, the real estate was duly appraised at the value of $1,200 for the whole tract, and of $150 for the share of each of said five minors, and the appraisement on the same day returned and filed in said court. It does not appear that any other or further proceedings were ever had in said court touching the matter. Afterwards on the twenty-seventh day of October, 1859, the said John Bone, Jr., Elizabeth his wife, and her three adult ■children executed, acknowledged and delivered the following deed:
‘ ‘Know all men by these presents that I, John Bone, guardian of William Bone, James K. P. Bone, Thomas M. Bone, Albert F. Bone and Clements S. M. Bone,, have in conformity, to an order of the county court of Knox county, Missouri, and Maranda B. Bone, Mary Bone, G-'eorge A. Bone, and Elizabeth Bone, the wife •of said John Bone, this day, for and in consideration of the sum of $1,150 to them in hand paid by*181 Aaron Callahan, of the county of Knox, in the state of Missouri, granted, bargained and sold unto the said Aaron Callahan the following described tract or parcel of land situate in the county of Knox, in the state of Missouri: That is to say, east half of the northeast quarter of section 33, and the southwest quarter of northeast quarter of section 33, in township 63,'range 11 west, in Knox county, Missouri, to have and to hold the premises hereby conveyed, with all the rights, privileges and appurtenances thereto belonging, or in anywise appertaining, unto the said Aaron Callahan, his heirs and assigns forever; we, the said parties of the first part, hereby covenanting to and'with the said; Aaron Callahan, his heirs and assigns, for themselves, their heirs, executors and administrators to warrant and defend the title to the premises hereby conveyed against the claim of every person whatsoever.
“In witness whereof we have hereunto subscribed our names and affixed our seals, this the twenty-seventh day of October, A. D. 1859.
“[Seal] John Bone,
“[Seal] Elizabeth (her X mark) Bone,
“[Seal] Makanda B. Bone,
“[Seal] Mary Alice BoNe,
“[Seal] G-eorge E. Bone.”
In the year 1859, Callahan went into possession of the premises under this deed, and he and his grantees have ever since been in the continuous, adverse possession of the same. The title of the defendants who are in possession now is regularly deraigned from him.
On the thirtieth day of January, 1889, Elizabeth died, and on the ninth of April, 1890 this suit was commenced by the plaintiffs, who are three of the five children of Elizabeth Bone who were minors in 1859, and the representatives of the other two deceased named in the foregoing deed of'John Bone et at., dated
■ I. The grant in the' devise is to Elizabeth Bone, and standing alone under the statute would have been sufficient to pass the fee simple title of the grantor to her (Revised Statutes, 1845, p. 219, sec. 2); but this grant, being immediately limited by a habendum, clause, “to her and her children, heirs of her body, forever,” had the effect of passing to her only an estate in fee tail under the statute of thirteenth Edward the first, which under the statute of this state became an estate for life in the said Elizabeth, remainder in fee simple to her children. Revised Statutes, 1845, sec. 5, p. 219.
The deed of the Bones to Callahan of October, 1859, passed the life estate of the said Elizabeth and the fee simple title of the three adult children to him; but, unless it also passed the fee simple title of the five minor children, the plaintiffs are entitled to recover five eights of the premises as ousted tenants in common, for, their right of action as such having first accrued upon the death of the said Elizabeth in 1889, there is no question of title by adverse possession in the case.
II. The important inquiry is, did John Bone, Jr., have power to sell and ctmvey the interest of the five minor children of Elizabeth, and, if so, from what source did he obtain it.
We are first pointed to the special act of the legislature of 1855 as conferring that power. The very interesting question at once suggested and argued at some length in the briefs of counsel, “whether under the constitution of 1820 the legislature could directly authorize the sale of a minor’s property by one occupying no fiduciary relation to such minor, without judicial process and inquiry,” has, since .the adoption of the Constitution of 1865 and 1875, become of no general importance; and for the purposes of this
But on the contrary, nearly five years after the act was passed, and after three of the children had become of age, and the situation upon which the act was predicated had been entirely changed, he qualified as guardian and curator of the estates of the five minor children under the general law, and in that capacity prayed for and was given conditional power to sell the undivided interest of the five minor children, not for reinvestment, but for the education and maintenance of said minor children. Under this supposed power he alone pretends to have acted in the deed made to Callahan, and if that conveyance is valid as to these minors, it is so solely by reason of the power vested in him as guardian and curator by the county court of Knox, under whose order he alone assumed to act.
III. In the general law in force at the time these proceedings were had, no provision was made for the sale of the lands of a minor for reinvestment by an order of the county court; but such court was author
The deed of John Bone et al. to Callahan is neither executed nor acknowledged by Bone as guardian or curator of said minor children, does not purport to convey their interest in the real estate in question, does not contain the recitals required by the statute and does not show a sale made by him as such guardian or curator in accordance with the order of the county court, nor that the deed was made by virtue thereof; and did not have the effect of passing the legal title of said minors in the land in question to said Callahan.
IV. Although the deed failed to pass title,, yet, if Callahan purchased the interest of these children at a valid sale of their interest by their guardian or - curator for an adequate consideration and paid the purchase money, he and his grantees would have an equity for a title that would avail the defendants as a defense in this action. Sherwood v. Baker, 105 Mo. 472, and cases cited. The evidence upon this point tends to .show that Callahan bought the property from John Bone at private sale and paid $1,150 cash for it, and that was about the value of the land, and that he thought he was getting the whole title to it.
In the law under consideration it does not seem to have been the intention of the legislature to invest county courts with the power to order the sale of real •estate of minors for any other purpose than their education. Revised Statutes, 1855, supra, sec. 24. But as we held in Strouse v. Drennan 41 Mo. 290, that, where a sale was made for the education as well as the support of the ward, the jurisdiction of the county ■court-would be sustained and the sale not held void for that reason, this point need not be further considered. It may also be doubted whether under this law the uounty court could authorize a curator to sell his ward’s
V. It is next contended that, although the defendants may have no title nor an equity for a title, yet
The statutory enactment, that no person who shall in good faith pay money to one acting in a fiduciary capacity, authorised to receive the same, shall be responsible for the'proper application of such money, or his title affected by a misapplication by the trustee and the decisions cited by counsel to the same purport, have no application whatever to the claim now being considered. If the curator had been invested with power to consummate the sale and receive the purchase money without the approval of the county court, then Callahan, although he did not get a legal title by the deed, would have had an equity for a title, and that equity would not have been affected in any manner by a misapplication of the purchase money by Bone. As we have seen, he never acquired such an equity, but by this claim is seeking to build up an equity for a return of the purchase money paid at a sale without judicial sanction, an equity which could have no exist-
VI. A claim is made also for the amount of the annual taxes paid by the defendants and their grantors on the land, and for improvements. In regard to this claim it is sufficient to say that the evidence shows that no permanent improvements were made by which the value of the property was enhanced; and that the defendants as tenants of the life estate were bound to keep up the repairs and pay the annual taxes.
The judgment is for the right party and is affirmed.