203 Mo. 100 | Mo. | 1907
Ejectment for certain land in Lincoln county. Charles M. Shelton was the common source of title; he died in 1848, leaving a wife but no
Defendants claim title through a sale of the land made under a decree of the circuit court of Lincoln county in 1871. The pleadings in that case were not in evidence and it is said in the brief of counsel that they were lost and therefore could not be produced, but the decree was in evidence, and from it the following appears: The plaintiffs were Joseph M. Heady and Jane his wife, and the defendants were their above-named children, all of whom were then living and all of whom were minors except Mary. The decree recites that all the defendants were personally served with process, that Mary appeared by her attorney and the minors by their guardian ad litem. The court, after first finding that the land (describing it) belonged to Shelton in his lifetime and was by his will devised to. his wife for life, remainder to the heirs of her body, then finds “that it will conduce to the interest of the defendants, who are the heirs of the body of the said Jane S. Shelton, now Jane S. Heady, to sell the said real estate and to invest it in other real estate more productive and beneficial to said defendants.” Then the decree goes on to recite that the court finds that
Defendants’ next offer was a deed from Joseph M. Heady, the commissioner, under the decree conveying the land to David H. Rashback, trustee, reciting that it was sold for $10,007.46, and that Rashback had on the day of the date of the deed paid the commissioner $6,000, the balance due on the sale. The deed was dated September 20, 1878, more than seven years after the date of the decree. There was no report of the sale to the court for confirmation, but the deed was acknowledged in open court on the date last-named. After this came other deeds purporting to bring the title, except as to an undivided one-eleventh, down to the defendants. The judgment was for the defendants and plaintiffs appealed.
I. When the decree was offered there were some objections interposed, chief among which was its alleged invalidity for lack of jurisdiction in the court, and also because it appeared on its face to have been altered by erasure and interlineation.
The question of jurisdiction in the circuit court in' 1871 to render the decree is the first serious question in the case.
At the date of the rendition of this decree there was a statute which authorized the circuit court to order a sale of a minor’s real estate for investment in stocks or other real estate when it should appear to the court to be for the benefit of the minor to do so. [G-.
The same is substantially the statute law of the State now, except that the jurisdiction is now lodged in the probate court instead of the circuit court. [R. S. 1899, secs. 3510, 3511.]
It is conceded that the circuit court in making the decree now in question did not proceed under those statutory provisions, but was assuming to act under its general jurisdiction as a court of equity, and the contention of respondents is that the authority for the decree is found alone in the body of equity jurisprudence.
Since the pleadings in the case are not in evidence we can only ascertain what they contained as their contents are reflected in the decree. By the decree we learn that the life tenant and her husband were the plaintiffs and that her children, the prospective contingent remaindermen, were the defendants. The decree starts out with the recital that process was duly served on all the defendants, that a guardian ad litem was appointed by the court for the minors and they all appeared, and all the issues were duly submitted to the court. Then, as if in response to those issues, the court finds that by the will of Shelton the plaintiff Jane took a life estate in the land, and the heirs of her body
From this it appears there was no necessity suggested for the sale of the land, no apprehension of imminent destruction of title or loss of the property, not even a necessity for its sale for the support and maintenance of the children, but the decree rests solely on the foundation that it would conduce to the interest of the defendants to sell this land and invest the proceeds in other land — a mere business speculation. If the decree can be upheld it must be so on the ground that at that time the circuit court' by virtue of its general equity jurisdiction had authority to appoint a commissioner and clothe him with power to enter into such a business speculation with the infants’ real estate in the hope and for the sole purpose of bettering the infants ’ financial condition. There are some authorities in this country that hold that a court of equity may do that, but the weight of authority is to the contrary and we think reason and judicial prudence are against the recognition of such a power.
Counsel on both sides have referred us to some Missouri cases bearing on the subject.
In Kearney v. Vaughan, 50 Mo. 284, plaintiffs derived title through a sale of real estate of minors under a decree of a court of common pleas; this court held that, as against the defendants in Kearney v. Vaughan, who were strangers to the record in the case wherein the decree was rendered, the decree was valid. But the minors whose land was ordered to be sold under that decree were not parties to the suit of Kearney v. Vaughan, and their right to question the validity of the decree was not involved.' The court after saying that
Castleman v. Relfe, 50 Mo. 583, was a suit in equity by the purchaser at the guardian’s'sale to set aside the sale and cancel the purchaser’s notes given for the purchase money on the ground that the proceedings in the circuit court wherein the decree of sale was rendered were so irregular that no title passed. Those proceedings were in the circuit court, under the statute, by the guardian for the sale of his ward’s land, and there were some irregularities in the proceeding, among which was the fact that the sale had not been reported to and confirmed by the court, but it was held that although in a like proceeding in the probate court a report of the sale and confirmation thereof was necessary, since that was a court of limited jurisdiction, yet such was not necessary in the same kind of a proceeding in the circuit court because the latter was a court of general jurisdiction. In that connection the court used this language: “The circuit court is a court of general jurisdiction, and when it has acquired jurisdiction, however erroneous or irregular its proceedings may be, they are regarded as valid and binding until they have been reversed or annulled by suitable proceedings in
The language just quoted does not mean that every sale ordered by the circuit court because it is a court of general jurisdiction will be upheld until the judgment is reversed or annulled by suitable proceedings instituted for that purpose; it means that the judgment will be so upheld provided the jurisdiction of the court appears. In that case the court was proceeding to exercise the particular jurisdiction the statute had conferred and the validity of the judgment was assailed, not on the ground of want of jurisdiction, but of irregularity in the proceeding. In the case at bar the jurisdiction of the court over the subject is assailed.
In Woods v. Boots, 60 Mo. 546, this language occurs : “The power of ordering a guardian or curator to sell lands of the wards and invest the funds existed originally in the circuit court as a court of chancery. ’ ’ That language must be interpreted in the light of the context and in view of the subject to which it was applied. The court was not speaking of original equity jurisdiction, but of the jurisdiction originally conferred on the circuit court by this statute which we have been discussing, which was originally enacted in 1861 and was afterwards, in 1866, amended to confer the same jurisdiction, concurrently, on the probate courts of certain counties. The subject the court was considering was an order of the probate court authorizing a guardian to invest certain money belonging to his ward in certain real estate, and it was claimed that the order was authorized by that statute. This court held that the statute did not authorize the order and that the guardian was liable for the money so invested as for a misappropriation. Whilst that case treats only of jurisdiction conferred by statute and is therefore no authority on the question of equity jurisdiction, the facts serve to illustrate the unwisdom and danger of such a juris
In Hamer v. Cook, 118 Mo. 476, is found this language and defendants quote it as sustaining their side of the question: “Again, it is the practice of the court of chancery to permit guardians, under the direction of those courts, to convert real property into personalty, and personalty in realty.” That language was not there used to express the decision of the court upon any point in the case, because, as we will see by reference to the whole opinion, the decree then under review was based on what the trial court had construed to be a devise of land in trust for a particular purpose and the order of sale was to carry that purpose into effect, and the point decided by this court was that the circuit court had jurisdiction to construe that will and if it created a trust to enforce the trust, that such a decree, though it may have been based on an erroneous interpretation of the will, was yet within the jurisdiction of a court of equity and therefore not subject to a collateral attack. The decree, the validity of which was assailed in that case, was rendered in the circuit court of
We find nothing in our decisions to sustain the position of defendants on this question.
There is nothing in the character of this subject that especially distinguishes it as a creature of equity. That which we technically call equity, in contrast with what we technically call law, was of natural origin and growth in our jurisprudence, springing up to meet the imperative demands of justice at places where the law was inadequate to the occasion. “Equity follows the law,” it does not override or subvert the law, it comes to the aid of the law when the law, on account of its rigid cast, is unable to adjust itself to the demands of justice. Equity sits silent in the courts as long as the law is able to meet the demands of justice; it is silent to the call of a mere legal right, its voice is heard only when a cause, not contrary to law, well founded in right and justice, would suffer without its aid. It is cold to a mere legal demand but warm to the prayer of helpless justice. It aids the law but is not officious -in its services, it does not take hold of a case merely because it has peculiar power.
Now what was there in the nature of the case in which the circuit court of Lincoln county in 1871 undertook to exercise its power as a court of equity that especially appealed to equity for aid? "What cry of
„ If jurisdiction in chancery to sell the land of infants for the mere purpose of investing in other property ever existed, there is no necessity for its exercise in Missouri, because under the statute above quoted ample power to do that, under the safeguards in the statute itself prescribed, is given. That statute was in force when this decree was rendered in 1871 (Laws 1860-61, p. 98), and is substantially the statute at present except that the jurisdiction is now given to the probate court. [R. S. 1899, sec. 3510.] It is true, as contended by defendants, that the mere creation by statute of a legal remedy where none existed before,
In the briefs before us this question of equity jurisdiction is discussed with great learning and ability on both sides, and, if time and space were of no consideration, we would like to follow the counsel and review in this opinion, as we have followed them and reviewed in the library, the authorities which they have respectively arrayed. We must, however, be content to refer the inquirer for learning on this subject to the briefs of the counsel which will be reported with the case and to give, with but little further discussion, our conclusion, viz: that the decided weight of authority both in England and America is against the contention that courts of equity have jurisdiction to decree a sale of a minor’s land for the mere purpose of reinvesting the proceeds.
Counsel for defendants seem to concede that the
We discover no essential difference between the foundation on which the'English decisions are rested and that on which the decisions of our courts rest, or any reason why the same principle of equity jurisprudence is not as applicable to the conditions in one country as in the other.
There is, as the learned counsel contend, in our law an absence of that jealousy against alienation of real estate that we observe in the English law. But that jealously applies in England with equal force to the alienation of land held by a person sui juris as to that held by an infant. There is no difference, so far as the inalienable feature of the English law which we are now considering is concerned, between land held by a person.sui juris and land held by a minor; if the inalienable feature exists in the title by which the land is held it affects the one as well as the other. If in
It is also .true that in this State and some other States of this Union there are constitutional limitations on the power of the Legislatures to pass special acts to authorize the sale of particular minors’ estates, and there is no such restriction on the power of the British Parliament. But our General Assembly is as free as the lawmakers of England to pass a general law to cover all such cases and it has done so in terms as ample as could be conceived.
II. There are other questions discussed in the' briefs but in view of the conclusion we have reached on the main question they are of minor importance and need only to be briefly mentioned.
Under the Shelton will the land was devised to the widow for life with remainder to the “heirs of her body” — not the “issue of her. body” — as in Tindall v. Tindall, 167 Mo. 218. The widow and her second husband as plaintiffs brought the suit against their children then living; of course she had no heirs at that time because she was living, her children had then only contingent interests depending on outliving their mother, two of them never became .her heirs because they died before she did and their children who did become heirs of her body were not born until years after the decree was rendered. These latter were not bound by the decree, even if the others had been, because they derived their title, not by inheritance from their mother in whom no title ever vested, but directly from the will as being heirs of the body of their grandmother.
There are still other questions discussed in the briefs, but in view of the conclusions above stated they are of no importance.
The life tenant died in December, 1900, and the plaintiffs, the remaindermen, brought this suit in February, 1901.
The judgment is reversed and the cause remanded to the circuit court of Lincoln county to he retried in accordance with the law as in this opinion expressed.