Revely v. Skinner

33 Mo. 98 | Mo. | 1862

Bay, Judge,

delivered the opinion of the court.

Plaintiff filed his petition for the specific execution of a contract relating to two lots of ground in the town of Lagrange, in the county of Lewis. The petition alleges that one Charles S. Skinner, since deceased, sold said lots to one Wilcox in July, 1846, for the consideration of twenty dollars, to be paid in plastering, and executed and delivered his title bond for the same, wherein he covenanted and agreed, upon the payment of the consideration, to make and deliver to said Wilcox a good and sufficient deed of conveyance for said lots, &c. That said Wilcox, for a good and valuable consideration, transferred said bond and all his right and interest in said lots to one M. P. Revely, who subsequently transferred the same to plaintiff, by endorsement thereon. That in Aiigust, 1856, said Wilcox died, leaving a widow and four infant children, his heirs at law, who are made defendants. The court appointed David Wagner guardian ad litem for the minor defendants, who answere^d that he was not advised, nor had he any information in regard to the matters and things stated in the petition, and required strict proof threof. The answer of Charlotte R. Skinner, the widow, admits the execution of the bond, and, after setting up various matters in defence, states, in reference to the alleged transfer and assignment of said wi’itten obligation, that she has no information thereof sufficient to form a belief.

Upon the hearing of the cause, the court below, against the objection of the defendants, permitted plaintiff to read in evidence the assignments upon the bond, without first proving the same. The ruling of the court in this respect is the main ground urged here for a reversal of the judgment. Our statute requires that the answer of the defendant shall contain a special denial of each material allegation of the petition, controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief, and every material allegation not so controverted is, for the purposes of the action, to be taken as true. The answer of Charlotte states that she has no information sufficient to form a belief, but does not state that she has no knowledge, &o. This section of our practice act is in the precise language of the New-York code, and it has been repeatedly held by the Supreme Court of that State that the defendant must aver that he has neither knowledge nor information, and the averment of one without the other is insufficient to controvert a material allegation. (Edwards v. Lent, 8 Howard’s Practice, 28; 1 E. D. Smith, 554; 20 Barb. 348.)

The ruling, therefore, with reference to Charlotte was correct, but the court erred in applying it to the infant defendants. The answer of the guardian ad litem is that he is not advised with reference to the matters and things stated in the petition, and requires strict proof thereof. The appointment of a guardian to defend a suit against an infant is made by the court in which the suit is pending, and is frequently taken from the by-standers, and he is not supposed to have any knowledge of the matter in litigation, and hence no verification is required to his answer. (R. C. 1855, vol. 2, p. 1234, § 20.) The rule under the old practice, which requires that the facts upon which a plaintiff relies for judgment against infant defendants must be established by legal proof is not abrogated by our present code. This is the view taken by the Supreme Court of New York in Lichfield v. Burnell et al., 5 Howard, P. R. 341. That was a complaint in the nature of a 'bill in equity to correct an alleged mistake in a deed of conveyance executed by one Clary. Clary having died, tlie suit was brought against his infant heirs, and pending the proceeding a stipulation with reference to certain proof was entered into between the complainant and guardian ad litem,. In speaking of the effect of this stipulation, the court says:

“ Both the attorney for the guardian and the referee grossly mistook their powers and duties. The facts which will entitle the plaintiff to a judgment must be established against those infants by legal proof. Neither the guardian ad litem, nor any other person has power to waive this proof, nor any right without it to consent to a judgment.”

There can be no doubt of the correctness of this ruling. Courts of chancery have always regarded infants as the especial objects of their care and protection, and will never permit a guardian ad litem, to do any act or make any admission, or enter into any agreement or stipulation which tends in any degree to prejudice or compromise their rights.

As very happily expressed by Justice Story, “ when the court ass\rmes authority over the person or property of an infant, it acts throughout with all the anxious cares and vigilance of a parent; and it allows neither the guardian nor any other person to do any act injurious to the rights or interests of the infant.”

In this case the court should not have decreed against the infant defendants without strict proof as to all the material allegations in the petition. The allegation with reference to the endorsements upon the bond were material, as showing a cause of action in the plaintiff, and the court should have required proof thereof before admitting the assignments in evidence. Other points are made in the case which we deem unnecessary to examine, as the cause must be remanded for the error above mentioned.

The judgment will be reversed and the cause remanded;

Judge Bates concurring. Judge Dry den not sitting, by reason of having been of counsel below.