251 Mo. 480 | Mo. | 1913
Plaintiff is the duly qualified curator of "William T. Jones, who was declared to be of unsound mind by the probate court of Buchanan county in July,'1909. Plaintiff, as curator, sues to have set aside a certain deed made by Jones to Shull for an undivided three-fourths interest in forty acres of land in Buchanan county on the ground, as stated in the petition:
‘ ‘ That at the time of said conveyance the said William T. Jones was of unsound mind and incapable of contracting and incapable of managing his affairs; that there was no consideration for said deed; that Samuel S. Shull has placed said deed of record in book 385 at page 194 in the Recorder’s office of Buchanan county, Missouri, and the same now constitutes a cloud upon the title of curator’s said ward.”
The answer was a general denial.
This shortly states the case, leaving for the opinion a recital of such pertinent facts as may be required for the disposition of the points suggested supra. These points we take in their order.
“The court finds and decrees that the said William T. Jones was of unsound mind, incapable of contracting and incapacitated from managing his affairs at the time of the execution of the purported conveyance dated June 10,1909, whereby he purported to convey to Samuel S. Shull, the defendant, the undivided three-fourths interest of land of the northeast quarter of the northwest quarter of section twelve, township fifty-six, range thirty-six, Buchanan county, Missouri, which said conveyance is of record in the Recorder’s office of Buchanan county, Missouri, in Book 385 at page 194.”
We are not prepared to say, however, that the evidence is not sufficiently abstracted for us to place ourselves in the position of the chancellor, nisi, if we deemed it necessary to review the facts in full, and declare a different conclusion from those facts. Such being the status of the abstract we overrule this contention of the respondent, and will take up the objections of the defendant to this finding and judgment.
“Now at this day comes James A. Gibson, curator of the estate of William T. Jones, of unsound mind, and states that heretofore, to-wit on the — day of July, 1909, his ward, said William T. Jones, was duly and legally declared to be of unsound mind and incapable of managing his affairs, by the probate court of Buchanan county, Missouri; that thereupon*487 the petitioner James A. Gibson, was, by the probate court of said, county, duly and legally appointed curator of the estate of said William T. Jones, and the said James A. Gibson thereupon, on said-day of July, 1909, did then and there duly qualify as such curator and enter upon the discharge of his duties as such, and now is duly acting in that capacity.”
Defendant in the brief says • that the petition is wholly bad, because the curator sues in his own name, rather than in the name of his ward. It is true that the title to property is in the ward and not in the curator. It is also true that the action should be in the name of the ward, rather than that of the curator. [Webb v. Hayden, 166 Mo. 1. c. 50, and cases cited; Judson v. Walker, 155 Mo. 166, and cases cited.]
In this case, however, there is another matter of moment. • If there was a defect in the petition in this regard it was one which was patent upon the face thereof, t and such question is waived unless there is a special plea thereto. [Baxter v. Transit Co., 198 Mo. 1. c. 8.] . A. general denial for an answer, as in the case here, does not preserve the point. In the Baxter case, supra, this court in commenting upon the position of Mr. Pomeroy on the code practice (Pomeroy Code Rem., 4 Ed.), and after stating the position ■of that author, thus speaks of and quotes from the author :
“The learned law-writer, although he regards the •Code as in itself a complete system depending for nothing upon the common law, yet . . . recognizes fully . . . the essential difference between matters that may be pleaded to abate the suit, and matters pleaded to defeat the cause of action, the only difference between the Code and the common law in respect to them being the manner and the order in which they .are pleaded and the issues tried. And on pages 813-14, he says: ‘The non-joinder of necessary parties cannot be proven under the general denial . . . The*488 defense that the plaintiff is not the real party in interest is new matter; . . . and in an action by an executor or administrator, the general denial does not put in issue the plaintiff’s title to sue.’ ”
So we say in this case, the general denial in the answer did not place in issue the plaintiff’s title to sue. It could have and should have been raised by demurrer, and not being so raised was waived. It is also true that á next friend has no title to the property involved in the suit. In Taylor v. Pullen, 152 Mo. 1. c. 439, Gantt, P. J., says:
“In Rogers v. Marsh, 73 Mo. 1. c. 70, it was ruled that this objection was in the nature of an affirmative defense and not available under a mere general denial. In Clowers v. Railroad, 21 Mo. App. 1. c. 216, Judge Rombauer commenting on this last mentioned case, said: ‘It was held that this objection is one for defect of parties plaintiff, and is waived under the statute, unless saved by special demurrer, or by answer. This last decision is not only in conformity with the more liberal views marking’ recent decisions, which disregarded purely technical objections in arriving- at the true merits of a controversy, but is furthermore the last controlling decision of our Supreme Court. ’ ’
"We are therefore constrained to hold that the defendant, by answering the petition and not specially pleading this defect in the petition, has waived the point.
“The petition fails to state facts sufficient to constitute a cause of action in that it nowhere appears from the petition that there is an ability and willingness on the part of plaintiff to place the defendant in statu quo, or that the defendant knew that the ward was insane at the time of the transaction in question and took advantage of him, hence defendant’s objection on that ground to the introduction of any evidence in the case should have been sustained.”
It occurs to us that the defendant is confounding’ the pleadings with the proof in making this challenge as against the petition. The petition does state a cause ■of action in equity. It states that Jones was of unsound mind and that the deed was given without con
“The court finds that said purported conveyance of record as aforesaid is a cloud upon the title of the said William T. Jones and the same is by the court declared invalid and for naught held and is so adjudged, cancelled and removed, so as to be wholly ineffective and constitute no cloud whatever on said title.
' “The court further finds that upon the execution of said purported conveyance by the said William T. Jones the said Samuel S. Shull defendant, paid to the said William T. Jones on the-day of June, 1909, the sum of $216.50, and it is further ordered and decreed by the court that the said plaintiff shall reimburse the said Samuel S, Shull the said sum of $216.50, with interest at the rate of six per cent per annum thereon from and after the 16th day of June, 1909, by the payment of said sum and interest to the clerk of this court to the use of the said Samuel S. Shull.
“Wherefore the court finds for the plaintiff as ■aforesaid with costs of suit and have execution thereof.”
“Wherefore, plaintiff prays the court to set aside, said deed and to hold the same for naught, and for such other orders and judgments in the premises as; to the court shall seem just and proper."
The real question, therefore, in this case is', whether or not, under this petition and its prayer for general relief, the court had the right to enter the judgment which was entered. This judgment indicated that the court found as a matter of fact that Shull dealt with a person non compos, and that on such deal he paid out $216.50, for which he should be reimbursed. Such finding was amply authorized by the evidence, but was it proper under the petition? We think so. When courts of equity, by a bill properly framed, acquire jurisdiction of a cause, such jurisdiction will not be released until full equity has been done, if there be a prayer for general relief, as there is in the instant case. This is true, although the plaintiff asks for some kind of relief which cannot be granted. In such case the court will hear the facts and
Following this time-honored rule in equity cases, we are impressed that the judgment here is within the purview of the pleadings, and, as we have held that we will not disturb it upon the facts, it must stand.
These paragraphs cover the substantial objections of the defendant. There are others which we deem it unnecessary to discuss. From it all we are con-' vinced that the trial court reached a righteous judgment in this case, and that it should be affirmed. It is so ordered.