151 Mo. 431 | Mo. | 1899
Action to set aside a deed of trust upon realty, and for an accounting. .
The amended petition in this case is in two counts. The first count alleges, substantially, that the plaintiffs are the children and grandchildren of Jedediah E. McKenzie and Mary E. McKenzie .(who died before her husband); that at the May term, 1869, of the county court of Jackson county, Jedediah was properly and legally adjudged insane, and Eobert O. White was appointed his guardian; that at the February term, 1870, of said court White resigned as such guardian, and Byron E. Dye was appointed as his successor; that the records of said county court show that Dye, in writing, informed the court that Jedediah had been restored to his right mind, and asked for an inquiry into the fact by a jury, which was done on the same day, resulting in the jury finding that Jedediah had been restored to his right mind and that he had become and was then competent to transact his own business. The information had underwritten an affidavit of Dye stating that the statement (or information) was true according to the best of his belief, and was sworn to by Dye before the clerk of the county court on the 9th day of December, 1870, three days after the verdict of the jury; that accordingly Dye was discharged from his guardianship and Jedediah was discharged from care and custody; that after-wards at the August term, 1875, J. J. Davenport informed the county court that he was a partner of Jedediah, and that he was a person of unsound mind and incapable of managing his own affairs; that upon inquiry, before a jury, Jedediah
The second count of the petition states the relationship of plaintiffs to Jedediah, his ownership of the property on April 1st, 1875, his death on the 9th of October, 1892, the execution on April 1st, 1875, of the deed of trust to secure
Catherine E. Donnell, M. S. C. Donnell, and the Citizens National Bank demurred, separately, to each count of the petition, specifying want of equity in each count. The circuit court sustained the demurrers to the first count of the petition, and overruled them as to the second count. The plaintiffs refused to plead over as to the first count and final judgment was rendered in favor of defendants on the first count on the 20th of May, 1893. The defendants filed separate answers to the second count and plaintiffs replied. At the April term, 1895, the circuit court tried the case by submitting to a jury the following issues of fact, viz.: “Was Jedediah McKenzie insane on the 1st of April, 1875? If you find that he was, then the second question is: Did he continue insane from that date to the date of his death?”
The defendants filed exceptions to the 4th and 6th findings of the referee. The court sustained these exceptions and fixed the rental value of the property at $120 a year, making $1,320; interest on same, $987; rents received by defendants, $640; interest on same, $96; rock quarried, $180; aggregating $3,223, and allowed defendants $750 for attorney’s fee rendered and to be rendered in contesting the suit on the tax bill for grading Locust street.
Thereupon on July 15th, 1895, the court entered a decree for the plaintiffs, canceled the deed of trust for $3,000 from Jedediah to Stewart’s trustee, also the trustee’s deed from Bailey, substituted trustee under the Stewart deed of trust, to Catherine E. Donnell,,also the deed of trust for $15,000 from Donnell to Mason, also the deed of trust for $500 from Donnell to Ballingall, vested the title to the property in the plaintiffs as the children and grandchildren of Jedediah, enjoined
I.
The first question open to review at the instance of the plaintiffs, is the correctness of the ruling of the circuit court in sustaining the demurrers to the first count of the petition. This count proceeds upon the idea that Jedediah E. McKenzie was in ward at the time the deed of trust to Stewart was executed on April 1st, 1875, and hence that deed was absolutely void. The allegations in support of this position are that at the May term, 1869, of the Jackson county court, Jedediah was adjudged insane and incapable of managing his own affairs, and Robert O. White was appointed the guardian of his person and the curator of his estate; that at the February term, 1870, of that court, White resigned and Byron E. Dye was appointed his successor; that the records of that court show that at the December term, 1870, of that court, Dye, filed an information, in writing, with the court, showing that
It is objected, at the outset, by the 'defendants to the right of plaintiffs to have the ruling of that court with respect to the first count, reviewed by this court, because, it is urged, the error claimed was not called to the attention of the lower court in the motion for a new trial, and because no exceptions were saved by plaintiffs to the ruling of the trial court in sustaining the demurrers to the first count. The demurrers and the rulings of the trial court thereon are parts of the record proper and are open to review in this court without exception taken or saved below, for they arc not matters of exception, but matters appearing on the face of the record proper. [Bateson v. Clark, 37 Mo. 34 ; State v. Matson, 38 Mo. 489 ; Peltz v. Eichele, 62 Mo. 178 ; State ex rel. v. Griffith, 63 Mo. l. c. 548.] The plaintiffs submitted to final judgment against them on
Section 3 of the Act gave the county court the right, in its discretion, “to cause the person alleged to be of unsound mind to be brought into court, and in this respect the law of 1865 was different from section 5515, R. S. 1889, which requires that the person alleged to be insane must be notified, unless the probate court order the person of the alleged insane
The county court was therefore vested by the constitution of 1865, with exclusive, original jursidiction in all matters relating to probate, the appointment of guardians, etc., and as to such matters its judgments import verity to the same extent and effect as judgments of courts of general common law jurisdiction do with respect to matters cognizable by them, and the former can not be attacked or impeached collaterally as to matters confided to their jurisdiction, any more than those of the latter as to matters of general jurisdiction. [Johnson v. Beazley, 65 Mo. l. c. 254 ; Long v. Joplin Mining, etc., Co., 68 Mo. l. c. 433 ; Sims v. Gray, 66 Mo. 614 ; Price v. Real Estate Ass’n, 101 Mo. 107 ; Murphy v. DeFrance, 105 Mo. 1. c. 62 ; Williams v. Mitchell, 112 Mo. l. c. 308 ; Macey v. Stark, 116 Mo. 494.]
The judgment of the county court in December, 1870, declaring that Jedediah had been restored to sanity and discharging him from care and custody, can not be attacked in this collateral proceeding at all, and it must be conclusively
The first count of the petition proceeded entirely upon the idea that Jedediah was in ward in 1875 when he made the Stewart deed of trust and had been so since 1869 when he was adjudged insane, and that the deed of trust was void, under the decision of this court in Eannells v. G-erner, 80 Mo. 474, and under section 5542, E. S. 1889, and hence the plaintiffs were entitled to have the deeds of trust canceled and the property restored to them, without tendering back any benefits they had received from those deeds of trust. The conclusion would follow if the premises were true. But the judgment of December, 1870, discharging Jedediah from ward conclusively settles that he was not in ward at the time he made the Stewart deed of trust. That judgment may be never so irregular or subject to-attack in a direct proceeding, but it is not void, and hence is not subject to this collateral attack. [Sims v. Gray, 66 Mo. 613.] The circuit court therefore committed no error in sustaining the demurrers to the first count of the petition.
II.
The plaintiffs assign as error the ruling of the circuit court in overruling their motion to modify the decree. It will be observed that the plaintiffs had obtained a verdict upon the second count of the petition declaring that Jedediah had been insane ever since 1869. It will also be noted that in the second count the plaintiffs offered to return the $2,105
The second ground assigned in the motion to modify was that the $2,105 and interest should not be refunded because Jedediah was insane when he made the Stewart deed of trust and the benefits he received therefrom were lost and resulted in no permanent or durable benefit to him.
It is argued that there is no legal distinction between contracts of infants and those of persons non compos mentis who are not under guardianship; that they are both voidable, and that in respect to infants this court held, in Craig v. Van Bebber, 100 Mo. 584, and in Lacy v. Pixler, 120 Mo. l. c. 388, that an infant might upon attaining his majority, dis-affirm his contract and recover the property he had sold, without refunding or offering to return the purchase price received from the grantee, if he had lost or squandered the money received, but if he still had the money he had received he must return it, and the reason given was “the privilege of repudiating a .contract is accorded an infant because of the indiscretion incident to his immaturity; and if he were required to restore an equivalent, where he has wasted or squandered the
It is enough" now to say that this case does not involve a disaffirmance of a contract by an infant. It is not necessary to review the conflicting decisions in America .and England as to the duties of an infant to restore the benefits received under a contract as a condition precedent to his right to dis-affirm. This case involves a contract made by a person alleged to have been insane when it was made, but who was not in ward at the time of its execution, and the proposition in this particular case arises under the second count of the petition, which while alleging that the proceeds of the contract were lost by the insane person and were of no permanent benefit to him or his estate, nevertheless offers to refund the price paid by the defendants, the Donnells, for the property, at the sale under the Stewart deed of trust, and also to do whatever in equity and of right should be done. The question, therefore, whether an insane person should be allowed to recover land conveyed without refunding the price received by him therefor, on the ground that the money has been lost or squandered by the grantor, is not fairly raised by this petition, and the case was not tried below on this theory. It was tried and won by plaintiffs on the theory that Jedediah was of unsound mind when he made the Stewart deed of trust, and that the plaintiffs desired to recover the property and expressly offered to refund the benefits received under the contract, and asked for an accounting.
The jury found that he was of unsound mind when the deed was executed. The court sent the case to a referee to state the account. The referee reported charging plaintiffs with all the items now complained of by them, and charging defendants with the rents received by them from the portion of the property rented to others, for the rock quarried therefrom and sold, and with the value^of the rents and profits of the remainder of the property. The plaintiffs filed no excep
Rut the law is settled in our State that a contract made by an insane person, in ward, is absolutely void [Sec. 5542, Ch. 86, R. S. 1889; Rannells v. Gerner, 80 Mo. 474], but that a contract made” by an insane person, not in ward, is only voidable, and that courts will not set it aside without restoring the parties to their original position.” [Blount v. Spratt, 113 Mo. l. c. 55 ; Wells v. Mutual Benefit Ass’n, 126 Mo. l. c. 637 ; Rhoades v. Fuller, 139 Mo. 187.]
In Blount v. Spratt, supra, Maoearlane, J., said: “There can be no doubt that a deed, or other contract of an insane person, mil generally be held invalid, yet, as is said by Mr. Pomeroy, 'While this rule is generally true, the mere fact that a party to an agreement was a lunatic will not operate
In Wells v. Mutual Benefit Association, supra, it appeared that the husband of the plaintiff during his lifetime .surrendered his certificate of membership in the defendant association, which entitled his wife, the plaintiff, to $5,000 on his death, and received from the association ten hundred and fifty dollars. After his death, his widow brought suit for the five thousand dollars, alleging that her husband was insane when he surrendered the certificate and accepted the ten hundred and fifty dollars, and made no tender of the money
It thus clearly appears that under the decisions in our State, at least, there is a difference between contracts of minors and of persons of unsound mind but not under guardianship, and that while an infant has an absolute right to disaffirm a contract made by him during his minority, a person of unsound mind but not in ward has no such absolute right, and that a court of equity will not set it aside if it was made in good faith (meaning without knowledge express or implied) by the other party, and if no advantage was taken of the insane person; and that in no case will relief be granted to such insane person or his representatives unless restitution is made of the benefits received by him from the contract and unless the status quo of both of the parties can be restored.
The doctrine contended for by the plaintiffs in the second ground of the motion to modify the decree, that they should not be required to make restitution of the benefits received as a condition precedent to a recovery of the land, because those benefits were lost or squandered by Jedediah, is therefore untenable, and the circuit court properly refused to modify the decree for this reason.
The third point presented by the motion to modify is the correctness of the allowance of $1,250 attorneys’ fees. The referee allowed $500 attorneys’ fees, in the condemnation case, and neither party excepted to the report in this respect. Nor indeed could there reasonably be any objection to this allowance. The condemnation case contemplated taking a strip off of the land, 30 feet wide and 400 feet deep, to make 23d street, and the remaining land was charged with about $1,400 in benefits in excess of the damages allowed." The attorneys defeated the proceeding, saved the strip of land and also prevented the $1,400 benefits being assessed against the property. A fee of five hundred dollars was reasonable. If
The referee allowed $375 attorneys’ fee for successfully defending the tax suit for grading Locust street, in the trial court and in the court of appeals. The case, however, had been transferred to this court and was pending here at the time the decree was entered below in this case. The referee did not decide whether it was proper to allow the $375 claimed by defendants as attorneys’ fee for services yet to be rendered in that case. The defendants excepted to this finding, asserting that there was no authority for an allowance of $375 for attorneys’ fee to defend this case. The plaintiffs filed no exceptions. It is not clear whether the Donnells alone objected to this, or whether the bank also objected. At any rate the court allowed $375 for services yet to be rendered in that case, and of this the plaintiffs now complain. As this sum was allowed for the first time by the court in its final decree, and as plaintiffs raised the objection at once, the correctness of the ruling of the trial court in this respect is properly open to review here.
As the services had not been rendered and as they might never be rendered no present value could be put upon them, and as it did not appear that plaintiffs had incurred any binding obligation to retain the same attorneys for the trial of the case in the Supreme Court or would be liable in any event for the $375, or any other sum for such unperformed services in that case, there was clearly no equity in the charge of that sum against the plaintiffs in this case. As they were decreed the property and the defendant’s title was divested out of them, it remained a matter for the plaintiffs to take care of, whether that suit should be defended in this court or not, and if so who should render the service and at what price. The decree is erroneous in this respect, and will be modified here
Tbe fourth point raised by tbe motion to modify involves tbe ruling of tbe court in reducing tbe value of tbe rents and profits charged against tbe defendants from tbe sum of $250 a year as recommended by tbe referee, to $120 a year.
There was much- testimony pro and con on this question. Tbe fluctuating values of property in that locality between February, 1877, and July, 1895, caused a great divergence of opinion as to what tbe real value of tbe rents and profits of this property was. Tbe trial court was in closer touch with the local conditions and with tbe witnesses than this court could be, and in this case we should defer to tbe judgment of that court, and not interfere with its action, especially as tbe testimony was so conflicting and there was enough evidence to support tbe finding, it being at best a mere matter of opinion and not involving tbe weight or effect of any positive evidence of a known or disputed fact. Besides tbe theory of tbe referee was too broad. The true rule is to ascertain tbe rental value in-its then condition — not in such condition as it might be put in by tbe improvement of tbe property — non constat that defendant was able to improve it.
Tbe judgment of tbe circuit court, so far as tbe same is affected by tbe writ of error sued out by tbe plaintiffs is concerned, is therefore modified so as to strike out tbe sum of $375 from tbe $1,250 allowed at attorneys’ fees, leaving tbe allowance $875, and tbe judgment is then affirmed, so far as it is affected by tbe writ of error. 'The defendants having also brought tbe case to this court by appeal and that case being now pending in this court and numbered 8322, tbe merits of that appeal and tbe ultimate judgment to be entered on the whole case, will be decided in that case. It is so ordered.