Bopst v. Williams

JAMES T. BLAIR, J.

This is an appeal from a judgment of the Atchison Circuit Court, which holds invalid a guardian’s sale of land and cancels certain deeds.

James A. Campbell, who died in 1889, devised his lands to his four children in equal shares, except that he provided the share of Edith P. Campbell should go to her for life and at her death should go to her bodily heirs. In 1900 Edith P. Campbell married one Logan. Respondent was born of this marriage. In 1902 Edith P. Logan, nee Campbell, divorced her husband, and, in 1904, married William E. Shenk in the State of Oklahoma. Respondent is her only child. August 26, 1907, heirs of two of James A. Campbell’s devisees began suit to partition the lands he devised. There were numerous defendants; among others, “Edith P. Shenk and W. E. Shenk, her husband, and Janies Logan” (this respondent) “a minor.” The land was divided in kind, and that involved here was allotted to Edith P. Shenk for life, remainder to her bodily heirs, as provided by the will. December 19, 1907, Edith P. Shenk was appointed guardian of respondent by the County Court of Blaine County, Oklahoma. She gave bond in the sum of $8,000, signed by Ed. Baker and W. E. Shenk as sureties. In January, 1908, Edith P. Shenk filed in the Probate Court of Atchison County her application, as foreign guardian, for an order to sell the interest of respondent in the land in suit. She accompanied this with authenticated copies of the record of her Oklahoma appointment and of the bond given in that State. The order of sale was made January 20, 1908. The interest of respondent was appraised at $3600. February 12, 1908, Edith P. Shenk reported she had sold respondent’s interest to William E. Shenk for $3600 at private sale. The sale was approved and a deed executed and delivered pursuant thereto. May 9, 1908, William E. Shenk and Edith P. Shenk, his wife, conveyed the land in suit to W. A. Williams,, who conveyed to appellant E. F. Williams in January, 1909. The latter executed a trust deed to the corporate appellant. In 1913 Edith P. Shenk died. Subsequently William E. Shenk was appointed guardian of respondent by the county court of Oklahoma. There was never any settlement or accounting made, to the Oklahoma court by either guardian. The only papers or records are those of. about the time Mrs. Shenk was appointed and the subsequent appointment of Shenk to succeed her. An aunt of respondent, Mrs. Bopst, discovered that Shenk was*inattentive-to the rights'of her nephew, whom she thereafter adopted and of whose affairs she took charge. At her instance this suit was begun. Respondent took the name of his adoptive mother.

■ The petition assails the transfer of the property by the guardian and the subsequent deeds on many grounds. Some of these go to the jurisdiction of the County Court of Blaine County, Oklahoma, to appoint Mrs. Shenk guardian of her son, and some' to the jurisdiction of the Atchison County Prohate Court to order the sale of the land in suit. The sale is also attacked for fraud on several grounds. Details are subsequently given.

Jurisdiction. I. Respondent urges that the evidence shows he and his mother did not live in Blaine County, Oklahoma, hut in an adjoining county, and that this deprived the County Court of Blaine County of jurisdiction to appoint a SY^dian. Let it be assumed it would he so in that State. Respondent's petition in this case expressly alleges he and his mother were residents of Blaine County. Further, the evidence which indicates the contrary was not offered to make this issue. It was incidental. The same witness testified in support of the allegation of the petition. In any event, this particular attack is collateral and cannot succeed. [Cox v. Boyce, 152 Mo. l. c. 582; Langley v. Ford, 171 Pac. l. c. 472, 473.]

Married Woman. II. It is urged that since our statute then in force (Sec. 417, R. S. 1909) did not permit a married woman to he cúratrix of the estate of a minor and since Edith P. Shenk was a married woman, she had no power to act in this State in the proceeding to sell respondent’s interest in the land in suit. It is not contended her married state affected her competency under the law of Oklahoma, in the State of residence of herself and of respondent. The Missouri statute which authorizes a foreign guardian to proceed to sell in this State property or interests of his non-resident ward does not require that such guardian shall possess the qualifications necessary to appointment in this State as guardian or curator. With respect to that the sole requisite is that the non-resident minor shall have “a guardian in that state or territory in which he resides;” and if that condition is met, so far as concerns this present contention, a probate court in this State is authorized to permit the foreign guardian to sell. [Sec. 411, R. S. 1919.]

Guardian's Bond. . III. Respondent contends the Prohate Court of Atchison County was without jurisdiction to order the sale because the bond of the guardian, given in Oklahoma, was signed by the guardian’s attorney and there is a statute in that State which, he insistsrenders this bond void for the reason it was so signed. The. bond was signed by Edith P. Shenk, as principal, and W. E. Shenk and Ed. Baker, as sureties. Baker was a practicing lawyer of Oklahoma and represented Mrs. Shenk in the proceedings for her appointment as guardian in that State. The statute referred to reads as follows:

“Licensed attorneys of this State are prohibited from signing bonds as surety in any civil or criminal action, in which they may be employed as counselors, pending or about to be commenced in any of the courts of this State, or before any justice of the peace. All such bonds shall be absolutely void and no penalty can be recovered of the attorney signing the same.”

Without Baker’s signature the bond would not have been good for the amount required by Section 411, Revised Statutes 1919. The bond in this case does not fall within the statute quoted. It was a guardian’s bond. Respondent assumes the bond was given in .a “civil action. ” A “ civil action ’ ’ implies adversary parties and an issue or issues and is designed for the recovery or vindication of a civil right or the redress of some civil wrong. [Berry v. Berry, 147 Ind. 176; Iowa v. C., B. & Q. R. Co., 37 Fed. l. c. 498; In re Battle’s Est., 158 N. C. 388; Lanning v. Gay, 70 Kan. 353; Ex parte Bailey, 1 Okla. Cr. R. l. c. 119; Maben v. Rosser, 24 Okla. l. c. 598; 1 C. J. sec. 8, p. 930; 1 R. C. L. sec. 11, p.325.] In many states, e. g., Oklahoma, statutory definitions of- like tenor have been adopted. “An action is an ordinary proceeding in a court of justice by which a party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense.” [Sec. 5536, Comp. Laws, Okla. 1909.] Secs. 5537, 5538, 5539 and 5540 of the same Laws read as follows: “5537. Special proceeding. — Every other remedy is a special proceeding.” “5538. Kinds of action. — Actions are of two kinds: First, Civil; Second, Criminal.” “5539.— Criminal Action. A criminal action is one prosecuted by the State as a party, against a person charged with a public offense, for the punishment thereof.” “5540. Civil Action. — Every other is a civil action.” "When the actions defined in Section 5539 are subtracted from all actions, as defined in Section 5536, the remainder defines “civil actions” in a manner ofttimes approved. The Constitution of Oklahoma excludes probate causes from the term “Civil Action.” [Welch v. Barnett, 34 Okla. l. c. 170.] We do-not mean to be understood as taking judicial notice of the statutes of Oklahoma. Those statutes are cited as typical and as, in fact, containing the ordinary definition of a civil action. The act respecting sureties which was offered in evidence clearly shows that “civil actions” exist in the State of Oklahoma. Since the statutes quoted were not offered in evidence, it is necessary to turn to the general definition of the words. That definition makes it clear that the bond involved in this case was not a bond given in a civil action; and, of course, there is no contention it was given in a criminal action. Such statutes are not extended by construction to subjects not within their purview. [Half-acre v. State, 112 Tenn. l. c. 611, 612; Lewis v. Higgins, 52 Md. l. c. 618.] It follows that the statute in evidence does not extend to guardians’ bonds.

Sale for Reinvestment. IV. The petition for the sale of the minor’s interest alleged, among other things, that on account of reasons stated in detail, “it would be to the best interest of said minor ... to sell” his interest in the land in question, transfer the proceeds to Oklahoma> where both guardian and ward resided, “there to be invested in other lands. . . .” in the ward’s name. The prayer was for an order of sale “for-the purpose aforesaid.” In the order of sale it is stated and found that “the rents and profits of said land so situated” (as set out in the petition) “are wholly insufficient to pay the charges and expenses necessary to support and educate said minor.” It further recited that it was shown the proceeds could be invested in Oklahoma to “much greater advantage and to the greater interest of said minor. ’ ’ ■

Respondent insists the probate court had no power to order a sale of a non-resident minor’s realty for reinvestment; that such a sale could be ordered solely for the support and education of such minor. His position seems to be that Section 409, Revised Statutes 1919 (Sec. 439, R. S. 1909), is the only section giving power-to sell such non-resident minor’s realty, and that Section 411, Revised Statutes 1919 (Sec. 441, R. S. 1909), is designed merely to provide safeguards for a sale under Section 409. The right of a foreign guardian to deal with the real property his non-resident ward owns in this State depends, in so far as concerns the question now being considered, upon the existence of statutory authority. As early as 1845 (R. S. 1845, pp. 554, 555) the statute permitted a foreign guardian of a non-resident ward to remove such ward’s personalty to the State of their common residence. At an earlier date (Sec. 8, p. 295, R. S. 1835) the statute authorized the sale of a resident minor’s realty to defray the expenses of his education. . In 1855 there were added to the chapter on Guardians and Curators three sections (Secs. 47, 48, 49, pp. 831, 832, R. S. 1855) which are substantially the same as Sections 409, 410 and 411, Revised Statutes 1919. These are the sections respondent argues were all passed for the single purpose of authorizing a sale of land for the education and support of a non-resident minor. We do not deem this the correct construction. Section 47, page 831, Revised Statutes 1855 (now Sec. 409, R. S. 1919), made the non-resident minor’s realty in Missouri available for his support and education just as the resident minor’s land was already available for his education, under Section 24, page 826, Revised Statutes 1855. Section 47 (now 409) clearly has in view Section 8, page 823, Revised Statutes 1855 (Sec. 382, R. S. 1919), which requires the appointment of a curator for a non-resident minor owns property in this State, and contemplates his retention of such of the minor’s personalty as is not ordered paid over to the foreign guardian and the payment by the curator to such guardian of the proceeds of sales of personalty and rentals of realty under proper orders therefor. Section 48 (now 410) confirms this construction and requires the curator appointed in this State, if so ordered, to loan proceeds of sales of the minor’s realty and pay over the interest to the foreign guardian from time to time. It is obvious that Section 49 (now 411) is much broader in its language. Sections already cited provided for the removal from the State of a non-resident minor’s personalty and for the discharge of the person formerly in custody of it. It seems clear that the Legislature intended by Section 49, supra, to provide for a like transfer of the value of the non-resident’s realty to the State of his residence. The language of the section is: ‘ ‘When a non-resident minor, owning real estate in this State, has a guardian in the state or territory in which he resides, the probate court in the proper county may authorize his guardian . . . to sell such real estate and receive the proceeds of sale . . . ” The remainder of the section has to do with safeguards by which the exercise of this power is surrounded. Such safeguards were and are not required under the two preceding sections, because under them the court determines the amounts proper to be paid over from time to time and retains the remainder in the hands of the resident curator. The quoted language of Section 49 (411, R. S. 1919) is unconditional. The power to sell is not limited to a sale for a stated purpose. It is evident a sale for a transfer to the minor’s home state was intended. . Since the statute did not condition the exercise of the power, the allegations of the petition with respect to the reasons for desiring the transfer, i. e. a more advantageous investment, are to be construed as designed to induce the probate court to order the sale. Since no reason was required to be stated 'to give jurisdiction, jurisdiction was not lost because the guardian included in her petition a statement of commendable motives. The learned probate judge need not have stated in his order that the sale was for the support and education of the minor. The statute did not require it in a case like this. So far as the present question is concerned it comes down to this, i. e. that the petition and order of sale stated the facts necessary to show the statute applied to respondent’s property, and then stated other things not required to bring the matter within the statute and which did not affect its applicability. This excess of statement did not invalidate the order. [Strouse v. Drennan, 41 Mo. l. c. 298; Bone v. Tyrrell, 113 Mo. l. c. 185.] The ruling in Johnson v. Beazley, 65 Mo. l. c. 258, does not affect the Strouse decision on this point.

Sale of Contingent Remainder. V. Respondent also contends that though it be held the statute (Sec. 411, R. S. 1919) authorizes the sale of a non-resident minor’s real estate, it did not authorize the sale of his interest in the tract in question. The words “real estate” when used in a statute include “lands, tenements and hereditaments” (Ninth Subd. of Section 7058, R. S. 1919) and the stat-u^e applicable to this case contains no exceptions. [Ancell v. Bridge Co., 223 Mo. l. c. 220 et seq.] Whether or not respondent’s interest was an estate in lands, it was an interest vendible by a person sui juris and under execution, despite the fact that the person or persons who are to take could not be determined until the death of the life tenant. [Godman v. Simmons, 113 Mo. l. c. 127, et seq.; Summet v. Realty & Brokerage Co., 208 Mo. l. c. 514; Parrish v. Treadway, 267 Mo. l. c. 96; Stockwell v. Stockwell, 262 Mo. l. c. 686; Sikemeier v. Galvin, 124 Mo. l. c. 372; Eckle v. Ryland, 256 Mo. l. c. 440; Armor v. Lewis, 252 Mo. l. c. 589.] Under the doctrine of this court (Oldaker v. Spiking, 210 S. W. l. c. 62, 63) such an interest when owned by a minor legally can be sold under proper orders of the probate court.

Payment. VI. It is contended the purchase price was not actually paid and that, therefore, the sale was and is void. The evidence relied upon to show non-payment seems to be that' tending to show the guardian did not account for the money in the County Court of -giaPng County, Oklahoma. The guardian’s deed recited payment in full in cash to the guardian, and that recital is prima-facie evidence of the fact. [Sec. 404, R. S. 1919.] .The embezzlement or dissipation of the ward’s money by the guardian would not concern appellants if the sale was otherwise good. [Exendine v. Morris, 8 Mo. App. l. c. 389.] _ It would not, of itself, render the sale void. [Thaw v. Ritchie, 136 U. S. l. c. 548; Fritzgibbon v. Lake, 29 Ill. l. c. 178, 81 Am. Dec. 302 and note; Mulford v. Stalzenback, 46 Ill. l. c. 309; Strouse v. Drennan, 41 Mo. l. c. 299; Harper v. Smith, 89 Ark. l. c. 288.] And a recital in the probate court record, repeated in the deed, or the receipt of the purchase price in cash cannot be disproved to defeat the title of an innocent purchaser, without notice and for value, from the purchaser at the sale. [Worthington v. Dunkin, 41 Ind. l. c. 525, 526; Cottrell v. Cottrell, 7 Ky. L. Rep. l. c. 672, 673.]

Appraisal. VII. The life tenant was twenty-five years of age when the sale was made. The whole property was appraised at $9,000. The ward’s interest therein was appraised at $3600. The value of the life estate wag therefore computed at $5400, which is substantially less than its value when computed by the statutory table. [Chap. 70, R. S. 1919.] The contingent interest of respondent was thus appraised at a sum in excess of the value of an indefeasible and vested remainder in the whole property. There is no claim the land was then worth more than $9000. The appraisal furnishes no basis for an attack upon the validity of the sale.

Sale to Guardian’s Husband. VIII. Section 402, Revised Statutes 1919, provides: “The court may order such real estate to be sold at public or private sale, or it may, in its order, provide that the guardian may sell at either public or private sale, at his option; but in no case shall the same be sold for. less than three-fourths of , , . ,, ,. its appraised value, nor shall the guardian or curator become the purchaser, either directly or indirectly, of any of the property of his ward sold under the provisions of this article.”

In Miller v. Staggs, 266 Mo. l. c. 456, it was held that under this section a sale for less than three-fourths of the appraised value of the ward’s realty was void. The decision approves a former decision (Carder v. Culbertson, 100 Mo. 269) in which it was held with respect to a like sale under the then existing statute respecting sales by curators, that the confirmation of the sale was coram non juclice and the deed showing the sale for less than the prescribed sum “was void on its face.” Whether the express provision in the succeeding section (Sec. 403, R. S. 1919) to the effect that the court shall not approve a sale for less than three-fourths of the appraised value of the property distinguishes the clause in Section 402 relating to appraised value from that respecting a purchase by the guardian is a question it is not deemed necessary to determine in this case. Even without such a statute as Section 402, a bill in equity will lie to set aside, after confirmation, a sale at which the person selling purchases either directly or through another. It is a fraud for which, in any event, an interested party may avoid the sale. [Rorer on Judicial Sales, secs. 572, 573, 574.] In the cases subsequently cited it will be found there is some authority for the proposition that at common law such a sale is absolutely void. Other authorities hold such sales voidable. In view of the character of this proceeding it is unnecessary to decide in this case whether the rule is one or the other. The facts showing the right of respondent to avoid the sale on the ground that the guardian had an interest in the purchase are all set up in the petition. The suit is in equity, and this mode of setting aside a sale and deeds of guardians to themselves is authorized by tbe decisions holding such a sale voidable only. That snch a purchase by the guardian, directly or indirectly, is ground, in itself, upon which an interested party may avoid the sale, even in the absence of a statute, is well settled. [Davoue v. Fanning, 2 Johns. Ch. R. l. c. 255, et seq.; Scott v. Gamble, 9 N. J. Eq. l. c. 236; Michoud v. Girod, 4 How. 552; Kruse v. Steffens, 47 Ill. 112; Bland v. Fleeman, 58 Ark. l. c. 90; Houston v. Bryan, 78 Ga. l. c. 185.] The rule is “not remedial but preventive,” and the fairness of consideration in a particular case cannot be shown to affect its applicability. [James v. James, 55 Ala. l. c. 531; O’Connor v. Flynn, 57 Cal. l. c. 295, 296; Grubbs v. McGlawn, 39 Ga. l. c. 675; Gilmore v. Thomas, 252 Mo. l. c. 155; Calloway v. Gilmer, 36 Ala. l. c. 362; Michoud v. Girod, supra; Lockwood v. Mills, 39 Ill. l. c. 608; Davoue v. Fanning, supra; Scott v. Gamble, supra.] “The rule . . . applies in all its force to guardians, and the disqualification attaches to the fiduciary character, independent of the mode of sale, the incapacity extending as well to judicial or other sales under adverse proceedings, as to those made by the guardian under his powers as such.” [Calloway v. Gilmer, 36 Ala. l. c. 359.] In that case the sale had been made under order of the probate court and was set aside. A like case is Cain v. McGeenty, 41 Minn. 194.

The particular ground upon which the petition in this case proceeds on this point is that the rule applies to the sale in question because the purchaser was the husband of the guardian. In Gregory v. Lenning, 54 Md. l. c. 58, it was held the husband of the guardian might buy at a sale of the ward’s land, because “the sale was not made by the guardian to her husband, but was made by the court through its trustee. ’ ’ In Davoue v. Fanning, supra, the sale was for the purpose of raising a particular legacy for the executor’s wife. The executor “by previous arrangement, suffered the property to be bought in” for her. Chancellor Kent said: “Whether a trustee buys in for himself or his wife, the temptation to abuse is nearly the same. . . . His in terest here interfered with his duty. . . . Indeed, the very fact that the executor, in that instance, was exercising the general powers of his trust for the- benefit of his wife, was peculiarly calculated to touch and awaken the suggestion of self-interest. The case, therefore, falls clearly within the spirit of the principle, that if a trustee, acting for others, sells an estate, and becomes himself interested in the purchase, the cestui que trust is entitled to come here, as of course, and set aside that purchase.” In Strauss v. Bendheim, 162 N. Y. l. c. 476, the court recognized this general rule, but refused to apply it where the record showed (1) the sale was confirmed with full knowledge of the relation, (2) the cestuis que trustent did not attack the sale, (3) the question was not raised until twenty-six years later, and (4) then raised by an apparent stranger to the proceedings as an objection to the marketability of the title in a suit to compel his' specific performance of a contract to purchase. In Tyler v. Sanborn, 128 Ill. l. c. 143 et seq., it was held that a sale by an agent to his wife, the principals being without knowledge of the relation, fell within the rule and was voidable. It was said that the husband still had an interest in his wife’s property, by virtue of certain statutes, which would vary by virtue of the increase or decrease of the wife’s interest in realty during coverture, and that her emancipation did not leave him disinterested therein; that, further, their relation was such, in itself, as to enlist his interest in her material welfare, independently of his financial interest therein and thereby bring his ' interest into conflict with his duty in a sale to her. In Louden v. Martindale, 109 Mich. 242, the husband of the administratrix bought at her sale. The court did not discuss the effect of the relation. It seems not to have been in the mind of the majority of the court as a feature to distinguish the case from one in which no such relation between seller and buyer existed. The case was ruled upon the question whether the husband’s reconveyance to his wife was proof of a purchase for her. One judge dissented. He briefly stated he thought “the sale by Mrs. Burns, as administratrix, to hér husband, by which, if authorized, at least an inchoate right of dower would vest in her was invalid.” The majority did not discuss or mention this suggestion. In Brown v. Fischer, 77 Minn. 1, an infant and another sued in the district court to set aside a probate court sale of the infant’s realty. The mother of plaintiffs had a life estate in the property, and plaintiffs took the remainder under their father’s will. The mother became plaintiffs’ guardian and secured an order to sell their interest. She sold, at private sale, to her husband, plaintiffs’ step-father, and confirmation was secured through concealment of the relation the guardian and purchaser bore to each other. A Minnesota statute was in force which prohibited a guardian from directly or indirectly purchasing or being interested in the purchase of any part of the real estate he sold. It was held that the statutory rights of a wife in her husband’s property, contingent upon her surviving him, gave her such an interest as to bring the sale within the prohibition of the statute and of the common-law rule, and a finding against the validity of the sale was affirmed. In Frazier v. Jeakins, 64 Kan. 615, a guardian of minors, under order of sale by the probate court,.sold at private sale to her husband. The sale was confirmed. Subsequently the guardian and her husband sold to Frazier, who bought with notice. It was held the sale was void. On the question in the instant case it was held the wife’s interest under Kansas statutes in realty owned by her husband invalidated the sale under a statute resembling Section 402, Revised Statutes 1919. The general rule was quoted and held to apply. It was held that while the statutory rights referred to were not common law estates they were, nevertheless, property, and that the relation, itself, of husband and wife, was of a character to bring duty and interest into conflict, the thing which both the statute and the general rule sought to prevent. The court cited several decisions. It quoted from Bassett v. Shoemaker, 46 N. J. Eq. 538, l. c. 542, in which an executor sold to his wife his testator’s farm: “The exclusion of the wife as a purchaser, where the husband sells as a trustee, is not so much for the reason that he may subsequently become entitled to some interest in her lands, as on account of the unity which exists between them in the marriage relation. The case falls clearly within the spirit of the principle which excludes the husband himself.” In Burton v. Compton, 50 Okla. 365, the purchaser at a guardian’s sale under order of the probate court was the guardian’s wife. The court held the statutory interest of the husband in the wife’s estate and their natural identity of interest by reason of the relation between the husband and wife brought the sale within the general rule and the prohibition of the statute law of the State. In Chastain v. Pender, 52 Okla. 133, the same holding was made in a case in which the sale had been made by an administrator to his wife. In Langley v. Ford, 171 Pac. (Okla.) l. c. 473, it was held that a guardian’s sab and deed to a third person, followed by a deed from the latter to the guardian’s wife, could be set aside at the instance of an interested party in an action brought for that purpose in a case in which there was shown a collusive agreement to bring about the result attained. A like holding is found in McGaughey v. Brown, 46 Ark. l. c. 32. In Georgia it was held: ‘ ‘ The principle which renders an agent incompetent to purchase from himself renders him alike incompetent to sell to his wife. . No one can doubt that the husband has a beneficial though” (in Georgia) “not a legal interest in the property of his wife.” [Reed v. Aubrey, 91 Ga. l. c. 438, 439.]

The statutes of this State give the wife a prospective interest in the real property of the husband. In this cáse the wife’s life estate would preclude dower vesting in her, but iii whatever interest the husband took by her guardian’s deed she would have- been entitled to share by election under our statutes in case she had survived him. The additional consideration, adverted to in the cited cases, which arises out of the nature of the marriage relation, is also of much force. It seems to us that the application of the statute should he so made as to exclude, where reasonably possible, the violation of the principle it formulates and diminish opportunities to defraud those dependent upon the integrity of guardians for the preservation of their rights. There is nothing harsh in the statute so construed and innocent purchasers will not be harmed thereby.

There is one decision, Crawford v. Gray, 131 Ind. 53, which holds a sale made in “good faith,” without “fraud or collusion” to the highest and best bidder cannot be set aside on the ground that the purchaser was the wife of the executor making the sale. No au thorities are cited. The statutes emancipating married women are quoted, and the ruling practically rests upon the result they have effected. "We think the rule of the cases first cited is correct and so hold.

Notice. IS. Did appellants have notice? They all claim .under respondent. The title they took at the time of the conveyance under which they claim were the life estate of Edith P. Shenk and the interest of respondent, nnder the Campbell will, as set off in the partition suit. They expressly admit that in that case it was “decreed and adjudged that Edith P. Shenk and W. E. Shenk were husband and wife and that Edith P. Campbell was a daughter of James A. Campbell, deceased, and that defendant James Logan is a son of Edith P. Shenk by a former husband and is a minor.” The relation between the guardian and the vendee at her sale is thus shown by the records through which the title of appellants is deraigned. The judgment in partition bound respondent and his mother and all who claim under them. [Sec. 2023, R. S. 1919.] It was also of record in the office of the Recorder of Deeds. [Secs. 2024, 2198, 2199, R. S. 1919.] The documentary foundation of the title under the guardian’s sale, coupled with the recital of the relationship by William E. Shenk and his wife in the deed to W. A. Williams, dispelled any doubt which could possibly have arisen out of the use of Shenk’s initials in the partition judgment and made the relationship quite clear. Appellants purchased with notice. [Seilert v. McAnally, 223 Mo. l. c. 518; Higbee v. Bank, 244 Mo. l. c. 427.] The point has been decided several times. [Burton v. Compton, supra; Frazier v. Jeakins, supra; Fisher v. Bush, 133 Ind. l. c. 321; Bank v. Walkley, 169 Ala. l. c. 652.]

Fraud. X'. There is support in the record for respondent’s contention that the sale was collusive and actually fraudulent> ^ie T11613^-01113 appellants present do not require further examination of that matter. Respondent complains the sum ($5000) allowed appellant Williams for improvements is excessive and illegal. Respondent did not file a motion for new trial and did not appeal. The question is not presented for consideration.. The judgment is affirmed-.

All concur except Elder, J., not sitting.

Case Details

Case Name: Bopst v. Williams

Court Name: Supreme Court of Missouri

Date Published: Apr 9, 1921

Citation: 229 S.W. 796

Court Abbreviation: Mo.