*1 “A part, as follows: Series, “department” the word Second defines handling subdivision”; a business concern division portion, or “a of ” corporation Mullgardt-Hartman major a . . . function being part a defend- a without department be defendant cannot ant. plain- prejudicial in view especially
We think this instruction opera- plan “that which contained the statement tiff’s Mullgardt ton, contract, S. out in aforesaid which said C. as set operated apparently as a Hartman, Inc., continued to be & C.B. merely a pretense separate entity, and distinct sham ” concealing defendant, view operations and in purpose of' “ . closing argument plaintiff, said, when it . . the law form, says and not and it it was Stiers in looks substance at law at cloaking corpo- doing business, this and this in some other who was nothing justice administration because we ration means see ” things . through . . those respondents what said we have that the record of It follows quashed be of the trial court should should remanded. It is All so ordered. concur. reversed Henry A. Guardian and Curator of John T. McKay, Arnold, Incapable Person of Unsound Mind and Managing His Af fairs, His Wife, Appellants-Plaintiffs, v. Hazel Roy
D. A. Guardian and Curator of A. Snider, Lawrence, Incapable Mind Person fairs, Unsound Managing His Af Roy A. and Dan Boyd, Appellants- Trustees, Lawrence, Defendants. No. 39337. 190 W. (2d) S. 886. One,
Division November 1945. Rehearing Denied, December 1945. *2 McKay John T. plaintiffs-appellants. *3 Goodmcm, Jr.,
Elbert defendants-ap- Ford and Arthur U. L. pellants. DALTON, C. Action to set cancel aside securing it, trust with a im- cross action to
pose an equitable lien on the described real bor- rowed, the note and deed of trust be cancelled. The trial trust, imposed cancelled the and deed of lien and (except taxed costs plaintiffs’ witnesses) against the costs of de- appealed. fendants. Both and defendants On November John T. person mind, unsound was the owner County of 30 of described acres real estate in Dunklin - duly appointed, and' qualified acting D. A. Snider was his duly and curator. Snider was-also the appointed, qualified *4 acting guardian person of Roy and the curator and of estate Lawrence, person A. a of mind. unsound Both Arnold and Lawrence disabled veterans of World War I were and their pending estates were County. the mentioned, in Probate Court of Dunklin On the date guardian and curator of Snider as of Arnold borrowed from estate guardian himself, and of Lawrence, as curator estate sum of ($1,000) (in agreed dollars. It is admitted one thousand state- facts) $1,000 guardian that ment of Snider “received said as and deposited of and curator Arnold to' credit of himself in the bank (that) guardian Arnold; of he and thereafter included in his as same County.” with the Court of Dunklin When the settlements Probate made, Hazel Arnold, wife, T. Arnold and loan was John his- and D. A. joined
Snider, guardian executing (in Arnold as and curator of in guardian Snider, A. as and curator of the Law- estate favor of D. of sought rence) deed of trust now to set aside. and be charged that the note and deed trust petition In the of . each was executed . . filing without first “because were void an order from the . . procuring and Probate Court . petition a . . . and him, Snider, guardian A. curator D. authorizing the said of and deed said note money to execute to of and borrow said sum securing the same.” trust petition was alleged that a petition cross Defendants’ answer and loan, to Lawrence authorizing estate of made and an order filed that estate $1,000; borrow, the said estate Arnold to and the $1,000; sum the estate of pay did over to Lawrence Snider, as charged the said legally duly and that said was amount full given Arnold was Arnold; the said guardian that curator and and settlements therefor; the records benefit credit and borrowing of said "the duly reflected properly and Court particular in and what money of said estate use benefit estate of Lawrence by estate”; that the money said said was used trust; and that the note and deed of the owner and holder of was equitable lien, asked unpaid. was Defendants due and were cancelled. the note and deed of trust as Snider, denied that petition Plaintiffs’ answer to the cross as paid Lawrence, over to himself guardian ever and curator n Dollars, sum of One Thousand guardian and curator trust; that Arnold and denied as in note and deed mentioned given therefor, and benefit or that full settlement credit bor- benefit had received the said Arnold of Lawrence. rowed from the estate agreed parties they were unable find .trial, "to On County petition Dunklin Probate Court records of the
files It covering authority of trust.” execute the note deed order agreed repaid loan had never been was further estate; payment that no tender such had ever been the Lawrence July 1941, resigned on Snider as anyone; that, made succeeded, such, curator of the Arnold as estate Henry McKay. A. there plaintiffs, probate behalf of evidence that "the files On probate indices of the records” been Arnold estate had authorizing searched; petition that no or order the note and deed found; that a of the files could search trust of the Veteran’s Administration disclosed estate the office filing notice of such relative order. defendants, behalf of tended to On evidence show that Judge consulted the Probate of Dunklin November Snider borrowing $1,000 County about the estate of Arnold from the executing note and of trust security of Lawrence *5 loan; that, Snider, thereafter and the Arnold Arnold’s wife went to Judge’s which office, Probate was then in a building located the store being constructed; courthouse was Judge new that the Probate while petition $1,000 "a prepared to borrow from for the Lawrence estate”; petition that the stated purpose Arnold the the loan pay was to of towit, debts the Arnold and interest estate, *6 through sp'eaks.only A is a court of record Court Probate 825; 9, David Burchard, 242 Mo. 145 S. W.
its records. v. Farris W. 29, 125 S. Co., Real & 226 Mo. son v. Davidson Estate Inv. papers file that some 1143. While the evidence tended to show tending that may was no evidence to show missing, have been there de mutilated, lost books had been or and records of the Probate Court con testimony witnesses stroyed. rejected The the oral finding hold cerning to that petition and order. We defer by the that unauthorized Probate note and deed of trust were Court. the order
Defendants-appellants further contend that Hazel judgment plaintiff, cancelling of trust as to the note and deed They insist pleadings or evidence. unsupported by iá either a cause petition that the does not state sufficient constitute facts to her to no entitles action in favor of Hazel evidence equity. relief in said John T.
The “that Hazel is the wife of states purported a party plaintiff Arnold . . . and is because she made men- signed a trust hereinafter purported to have note and only ground applicable her was tioned.” for the relief to acknowledgment to allegation that her person purporting to take notary no commission public deed of trust not a and “had was authority sign now ad- acknowledge to deeds of trust.” It is by Judge and acknowledgment mitted that the was taken acknowledgment. that the seal of the Probate affixed to Court was record shows was borrowed benefit estate; husband’s that used and was of was to be discharge automobile, used to the balance due on the Arnold which by was used Arnold, his wife and children. Both husband and wife signed trust, along the note and deed of with the delivery although curator. admitted, Execution and note was testify sign Mrs. Arnold did she refused the note and deed of that to quite presented trust for a little her. The note is while after it was unpaid by fraud, due and and held Lawrence No estate. mis- charged influence proven. take or undue Mrs. Arnold was, proper course, party action co-maker of the note to liability, wholly the petition relieved from but failed state a cause in her sup- of action favor and there evidence in record to port judgment granting affirmative her relief. assigned ordering
Error is on the court’s action in requiring of trust repayment and deed cancelled' “without . theory amount obtained On equity thereon.” that “he who seeks equity,” must do it is now contended were- not en cancellation, repayment titled “unless until” principal full had been made interest in estate. No such issue Lawrence pleadings. solely was raised The cause was defended on the made. order* filed and required petition theory that cancellation orders However, the same which funds require repayment fact, does, and deed of trust in, requested relief grants affirmative further, and, obtained assign- complain. The therefore, not, may Defendants cross action. *7 ment is overruled. con- will be concerning taxing of costs assignment
A further later. sidered in action assign the court’s Plaintiffs-appellants error on plaintiffs’ in against the lands described “establishing . . . alien ” is It of said fixing payment lien. . . and date petition . imposed upon the equitable lien could not
contended that a valid having court, cancelled (1) the real estate described because new themselves, powerless to make a parties contract made against fixing liens them; (2) equitable principle of “the contract for - evidence; (3) the to the facts in application real estate” had $1,000 from get the benefit of the borrowed Arnold estate did not Lawrence estate. two issues pleadings presented in cause
The and evidence this by the authorized fact, towit, (1) Was the and deed trust Court; Arnold the benefit (2) Did the estate of receive Probate money Lawrence. The first isshe of the borrowed from the estate of Plain- was found second defendants. issue from tiffs-appellants no benefit contend Arnold estate receive $1,000 (1) guardian loan took “double because curator estate; guard- making (2) credit” in settlement with payments ian and curator was not made entitled credit for the Company; (3) paid to the Universal Credit off was “bor- $550 note securing purpose” for an rowed unauthorized and the deed trust against Arnold”; á it “was not valid loan the real estate of John (4) $550 deed of trust void because neither were R. (requiring days’ See. S. 1939 Ad- ten notice the Veterans’ ministration) (requiring nor Sec. R. S. the court’s approval agreement) of the loan complied were with. stated,
As is guardian it admitted that Snider, D. A. curator estate, of the Arnold the $1000, deposited received it to the credit of in guardian himself the bank as such curator, paid such, it out as included the same his with settlement the Probate Court of County Dunklin and the settlement was approved by The the court. question settlement in is included in the record Apparently, before us. concerning the claim a “double credit” from arises the fact two loans are involved and credit was taken for specific paid items proceeds of the first loan, $550, obtained from Bank Hol- comb, payment and also for the of this paid $550 note when it proceeds of the note. guardian and curator charged himself with the receipt both $1,000, and, the $550 and
assuming charge. credit, there is a is double In double there Court, event, the approval settlement received of the had issue wherein is not in pending, the estate was and that here. (paid Credit for the to the Universal $387.30 credit taken
Company $1,000 loan) objected and from the to on proceeds of the the theory guardian the ward had furnished payments (the ward’s) these out his allowances. While this conten- tion supported by rejected evidence, properly some the court favor of approval had the Probate which had the settlement Court.
Was the (paid proceeds $550 note off with $1,000 loan) a obligation 'Plaintiffs-appel- valid Arnold estate? lants insist that the and curator “was not’ entitled to credit taken fifth annual . . payment his settlement . note,” $550 because the note was void and received the estate May 1939, no-benefit payment. guard- from its In then under ianship County, apparently disappeared Dunklin from his home *8 custody and was found in the at police Bakersfield, California, of the being held the for observation as seriousness of his mental condition. County, Arnold was the owner described real in the estate Dunklin bdt personal property there was no his application in estate. An was duly presented by guardian his and curator to’ the Probate Court to borrow on (1) funds the described real purpose estate of re- turning ward to the State the of Missouri for examination and observation, hospitalization, necessary for by found the Vet- eran’s Barracks, (2) Administration at Jefferson for the pay- ment past obligations of certain due of the estate. The order was duly expressly authorizing entered borrowing the $550 from the People’s Bank Holcomb, Holcomb, Missouri, for the purposes stated, and the and curator was authorized to execute Thereafter, trust. the $550 note and deed of trust duly were executed expended returning $300 sum of was Arnold to paid discharge $199.55 .Missouri and was tax liens on Arnold’s ’ real theory estate. Plaintiffs-appellants 475, 476, is that Secs. 477 478, 1939, R. complied with, S. were not and no debt or was lien created, earing because the cost of for and returning the ward to his estate, home not debt statutory or within any au- thority encumbering the ward’s real estate. No doubt the pro- bate court deemed cost of transportation ward, and care stated, proper expenditure under the circumstances for support and, accordingly, and maintenance entered the order. court The jurisdiction subject had matter it appears ap- that plication upon face, and order were due form their is, that unless proposed expense transportation ward, the care of stated, under the facts did not come under head of maintenance.
683 We think judgment question, it did. order and like the approving May order 14, 1940, the settlement of is not ns befor.e subject review on its merits it is not to collateral attack. Pro record, judgments bate courts are courts of and their and orders respected. must Phillips Co., v. Phoenix 327, Trust 332 Mo. (2d) 318, 320; Texier,
S. W. Texier v. (2d) 342 Mo. S. W. 1220, 778.
Was the or deed of $550 note trust void because of failure comply 606, with 482, Secs. R. S. 1939? apparent We think it is 482, from 1939, the record that Sec. fully R. S. complied with. theory
PlaintifEs-appellants’ that (requiring See. 606 notice) was complied upon not with is based application the fact that the to borrow filed May 29, $550 was and the order entered on 1939, note and deed bear $550 of trust the same date. No were issues pleadings raised with reference to Sec. reference
to the order probate authorizing the execution of the note and said deed of trust. There was no evi dence U. S. Veteran’s Bureau had appearance entered its writing in the matter of the required Arnold or that given. notice was not but, Veteran’s complaining Bureau is not approved in fact, showing disposition $1,000 settlement borrowed from the Lawrence estate. Under such circumstances the validity discharged of the debt or lien proceeds $1,000 loan 606, supra. See. uneffected
It apparent' only the Arnold estate not received the from the estate, Lawrence but Arnold estate has had finding benefit the fund since November 1939. The trial court’s is, accordingly, approved. of fact
Was the Lawrence estate entitled lien on Plaintiffs-appellants rely particularly described real estate? on the *9 Capen Garrison, case of v. Mo. 92 support 193 S. W. 368 to their equity that a will contention court of not make a contract for impose parties equitable or an lien under the facts of this case.
Except for the citation eases and the contention of no benefit to proceeds loan, the Arnold from the of the estate no effort been has point denying equitable reason for an made to out lien. Stigall Capen partially Berry (En
The case was overruled v. Banc), 690, 703, 253 Mo. upon S. W. 126. The facts which clearly distinguishable Capen was ruled are ease the facts here. Capen
In the certain minor children were real case the owners of tax trust, encumbered certain liens and a deed which they a note their deceased father from whom secured derived protect prior liens, title. To the real estate from foreclosure under the guardian petitioned the Probate an the children’s Court and obtained money discharge a order to borrow and execute new deed trust to liens, Subsequently, was done. new these which the.holder of the a sought of trust declared
note and deed of trust to have deed equitable an lien, or, denied, be decreed valid if that that the debt be purpose for "the lien was denied because on real estate. Relief execute probate essayed to authorize the curator to which the to the curator for which the law authorized deed was not one legal was no "There encumber his land.” The court said: ward’s and, therefore, there was obligation debt, pay on minors to this these lien. The doctrine equitable no on which to build an foundation does volunteer than equitable of a mere applies lien more favor no prescribe the a subrogation. In would statute the doctrine of vain a court property if mortgage his ward’s limit of a curator’s power to subroga- it bé by giving name, equity should, it another whether substantially lien, equitable tion invest an unauthorized expressly authorized if it had been it would have had the same effect ’’ by the statute. however, recognized the contended for ease, rule The court in that equitable lien by defendants-appellants, "The doctrine of as follows: subrogation. both closely They on come under follows that of only they applied in cases where ‘equality equity,’ is maxim are without But give justice fails would suffer them. the law to relief and well equitable prescribed boundaries as lien has its doctrine remedy applied a ac- subrogation; that of it is not limitless. particular chancellor, cording to the measure the conscience than, said, to of his more as an illustrious law-writer the measure request party at the right foot. The lien arises when applied which is money applied him to be of another advances when, legal obligation owing discharge other, of a of that but to the advanced, disability money is person to the to whom the money repayment. example, For is made for its valid contract pay is which has neces- advanced to minor to a debt he incurred for minor him, no action at law lies to recover of the on saries furnished money loaned, implied for express repayment a contract discharge a minor yet debt for which as the loaned equity purpose a court was liable law and it was used for that at repay charge property on sum will the minor’s advanced.” alien estate received have held that the Arnold from the We full fund Lawrence estate and received the benefit dis- good obligations. parties faith of involved charge of valid Judge admits that he was questioned. The Probate consulted not acknowledgment question, and the about the transaction note, securing signature bears his trust, both and the receipt disposition of the loan and the seal of court. of its reported Court in the settlement filed proceeds *10 by, the The note and with, approved and Court. deed trust evi- parties that the loan intention of the be secured a first dence the real statutes guard- estate. The authorized described the the lien on
685 ian curator, and the shown, under facts and with the consent approval mortgage to real for Court, the Probate the ward’s estate payment acting indebtedness, In of debts. to refinance guardian and protect curator acted the assets of to estate. furnishing and curator of estate in the funds the Lawrence payment of the debts the Arnold estate was not a volunteer. Stigall, Exchange Bank, 228
Berry supra; v. Netherton v. Farmers App. refinancing (2d) proceedings Mo. S. W. 156. The failed, prohibited by public not because statute policy, but because irregularity, that, controlling records of Probate Court failed petition asking authority to show that was filed or that order to borrow execute deed trust entered of record. real The Arnold estate still owns estate fights parties of no other have intervened. granting equitable do not of proper
We understand relief a proper making ease ever been held has to be the of a new con-' parties. tract for the While of trust has which, cancelled, been the Arnold estate has the fund was obtained ought justly repaid. from Lawrence estate and this fund be to estate may not retain the fund and also the described real relieved of the lien deed of estate trust. The assets of Ordinarily, the Arnold estate described consist of the real estate. equity
a not a upon court of" will lien real a create favor of estate party unless, rights transaction, sprung the nature of the have ought up which to be held binding upon specific property. Liens, 21, p.
Am. Jur. Sec. 430. In this case the fund advanced used, stated, discharge to lien prior valid the described real on pay probate estate and which property, court its order judgment necessary proper deemed maintenance of the family. ward and his Under the statutes the described real mortgaged could be payment sold for the these debts. In equity good may subrogated conscience the Lawrence estate be rights the creditors whose have been discharged claims property may impressed the relieved Berry Stigall, with lien. v.
supra.
equity
rightfully
“When a
possessed
case,
is
of a
relinquish jurisdiction
will not
doing complete
‘short
justice.’”
County
Nodaway
Alumbaugh,
v.
77. We deem the in favor of the Lawrence estate on the right cross to be accordance with pre- established cedents. judgment
That setting aside and affirmed, is trust as to the Arnold estate but part granting Hazel relief to reversed and the cause remanded her petition. directions dismiss That part equitable relief affirmative granting Lawrence estate on petition is affirmed the cause cross remanded with directions *11 fix a which the repaid reasonable within amount due shall time being and, not of the lien. repaid, so foreclosure This an equity suit, were found where some issues and some defendants, within the the matter of costs was discretion of the appears. discretion v. Zim abuse of that Bender trial court 210; Bruegge Bank 53, 36 S. W. v. State merman, 135 Mo. Wellston 835, 842. In view (Mo. Sup.), (2d) S. W. reversal may favor Hazel reassessment of costs. Brad make in its discretion Osdol, CC., concur. ley Van foregoing by Dalton, C., opinion adopted
PER CURIAM: —The judges All opinion of the court. concur. as the Will Bakewell, Chesbro, Executor Under of Crombie Paul S. Jr., Bakewell, Paul Trustee Under Trust Instru- Deceased; Jr., Chesbro; Chesbro, Minnie Anne G. ment Executed Anne G. Evarts, Helen Chrisholm, Schlappi, Frances Evarts Mabel D. Clemens, v. Coe, Kingsley Chesbro Evarts Olivia J. Evarts (2d) S. W. 912. Appellant. 39560. 190 No. One,
Division November 1945. Rehearing Denied, December 1945. notes dne People’s Holcomb, the Bank of pay ward’s the automobile “pay necessaries”; signed petition off that as Snider the Arnold; petition and curator the the was of estate of that Court; Judge gave filed the Probate and that the Probate Snider petition “the order, copy or a of it.” testimony There Judge was further the Probate that made order $1,000 authorizing Snider to borrow from the Lawrence estate the estate; benefit of the Arnold the 30 acres that of described real given estate was to security; that, after a copy Snider received of the order, signed by note and deed of prepared the trust were Snider, wife; $1,000 Arnold Arnold’s that Snider then took the the put estate; Lawrence estate and ánd that a copy the order was sent to Veteran’s at Administration their request. Defendant purchased Snider testified that the automobile for Arnold purchased authority of the Probate petition under Court. The filed and the order of the court for purchase of the automobile evidence. Defendant Snider further that, were in testified after the $1,000 obtained, paid loan was he off certain indebtedness of the towit, estate, one note to the Bank of Holcomb in the sum $550, Company a note to the Universal Credit on the Arnold automo- bile in and other items of $387.30 the sum of indebtedness. Defend- the fifth annual settlement of ants offered evidence Snider as May 14, 1940, showing as filed on Guardian Curator expenditure loaned to the Arnold estate. The set- duly by the approved been Probate Court. Defendants tlement had application in evidence the and order of the Probate further offered incurring evidenced $550 the indebtedness note and the Court securing and the deed of trust authority execute the note it. assign error on order and Defendants-appellants cancelling (1) note and deed trust.- It is court contended authority to borrow petition (requesting pay Arnold estate existing and to execute the indebtedness note trust) duly filed; (2) authorizing that order execution Court; (3) (trial) duly Probate that “the made petition a fact was filed and found as that the order should have made.” testimony of heard the oral the witnesses The trial court concern- making filing order. It petition is conceded ing Dunklin County Court of the records of do not show entering filing such such order. On the the court cancelled the and deed of presented evidence trust. finding presented by general peti- on the issues finding necessarily included trüst tion were unauthorized.