92 Mo. 673 | Mo. | 1887
Lead Opinion
The deceased, Jacob Weaver, was the father and natural guardian of the relator, George W. Weaver. This action was brought on a bond for three thousand dollars, executed by the said Jacob Weaver, as principal, and the said defendants, Felix R. Weaver and William Fisher, as sureties, the condition of which is as follows: “ The condition of the above obligation is such that whereas the above bounden Jacob Weaver, as the natural guardian of his son, George W. Weaver, did, at the March term, 1874, of the circuit court of Bates county, Missouri, obtain from said court an order, directing him to sell the land or real estate of the said George W. Weaver, and all his interest in said real estate described in said order; now, if the said Jacob Weaver shall conduct such sale with fidelity to the inter
It is alleged in the petition that said bond was, on the twenty-eighth day of July, 1874, duly approved by the circuit court of the county of Bates aforesaid, and the following breach of the condition thereof is assigned: “ That said Jacob Weaver, as such guardian, sold said land at the July term of said circuit court for the year 1874, for the sum of $2,160, and received said sum of money into his hands as such guardian, but that said Jacob Weaver, as such guardian, failed to faithfully account for the proceeds of such sale according to law, in this that he failed, refused, and neglected to reinvest said sum of money, as required by law, and neither he nor any one for him has ever accounted for or paid over the same.”
The defendant, Martha A. Weaver, executrix of said Jacob Weaver, deceased, made default. The defendants, Felix R. Weaver and William Fisher, answered, saying that they had no information sufficient to form a belief as to whether the said Jacob Weaver sold said land for the sum of $2,160, and received said sum of money, as charged in the petition, or not; denied the breach of the bond therein assigned, and, for further answer, alleged, in substance, that the real estate described in the petition as the property of the relator,, was purchased, and the consideration therefor paid, by the said Jacob Weaver, deceased, who caused it to be conveyed to his son, the relator, who was a minor about twelve years of age when the last conveyance was made,, in January, 1871, residing with his father, and who continued to reside with his father until his majority, July 18, 1880, and until the death of his father, December 28, 1881; that said real estate was sold by the said Jacob
The plaintiff replied to this answer, denying each and every allegation therein contained. The case was submitted to the court on the pleadings and evidence, without a jury; the court found for the plaintiff, assessed his damages at three thousand dollars, and rendered judgment accordingly, from which defendants, Felix R. Weaver and William Fisher, appeal to this court. The plaintiff, to sustain his cause of action, introduced in evidence the petition of Jacob Weaver, as natural guardian of the relator, to the circuit court of Bates county, presented to said ■ court at its March term, 1874, verified by his affidavit praying for an order for the sale of the real estate of his said ward, in accordance with the provisions of sections 34 and 35, chapter 116, of General Statutes, 1865, page 470 ; the order of said court, made at said term, authorizing the said guardian to sell said real estate, upon the terms in said order stated, at public sale, first having the same appraised, and entering into bond to the state of Missouri in the sum of three thousand dollars, conditioned that he make such sale with fidelity to the interests of said George W. Weaver, and faithfully account for the proceeds of such sale, and make report of his proceedings in the premises to said court; the bond sued on, given by said Jacob Weaver, as principal, and Felix R. Weaver and William Fisher as his sureties; report of the sale of said real estate, verified by the affidavit of said Jacob Weaver, showing a compliance with the terms of said order, and a sale of said real estate, at public sale, to Felix R. Weaver, he being the highest and best bidder therefor, for the sum of $2,160, and the receipt from him by said Jacob Weaver of the purchase money aforesaid; the
The plaintiff then rested, in chief, and the said defendants thereupon demurred to the evidence, on the ground that it showed no breach of the bond. The court overruled the demurrer, and this action of the court is assigned for error. The obligation of the defendants was to pay a certain sum of money, to be void upon the condition that the guardian should account for the proceeds of the sale of the ward’s real estate; the plaintiff made out a prima facie case, when he showed that a sale had been made, and that the proceeds of the ward’s real estate had come into the hands of the guardian. It then devolved upon the defendants to show that those proceeds had been accounted for; given, the execution of the bond by the guardian and his sureties, the receipt by the guardian of the proceeds of the sale of his ward’s lands, the obligation of the guardian to account for those proceeds became absolute, the liability of defendants on their bond was fixed, and could only be discharged by showing that the guardian had accounted for those proceeds, and, in whatever form presented in the pleadings, this was an affirmative proposition necessary to be asserted and proved by the defendants, in order to discharge them from the obligation of their bond and defeat plaintiff’s recovery. There was no error in overruling the demurrer to the evidence.
The defendants then introduced evidence tending to prove some of the many immaterial and redundant allegations.of new matter contained in their answer, and,
We hold the guardian and his sureties bound by the record they made in that proceeding, and that they must account to the relator for the sum of $2,160, pro
The evidence fails to disclose any other payment made by the father, or any sum received by the son, which could be considered as a payment on such account, or any charge that would be proper to be considered in reduction of plaintiff’s demand. The Portsmouth lot was deeded to the son in 1881, and was sold by him in 1882 ; the evidence in regard to its value is variant and conflicting ; the relator seems to have diligently sought to obtain the highest price that could be realized for it, and succeeded finally in disposing of it for two thousand dollars, which, from all the facts in the cáse, was as much as it could have been sold for. Out of this amount the relator paid the incumbrances on the property and legitimate charges for taxes, and expenses in making the sale, all amounting to the sum of $1,128.25 leaving in his hands in the year 1882, say
For the error of the court in the assessment of the damages, this cause will have to be reversed and remanded, with directions that the circuit court enter judgment in accordance with this opinion.
Rehearing
On motion for rehearing.
The motion for rehearing herein is overruled. The order, remanding this cause and directing judgment to be entered in the circuit court, is set aside, and under the power vested in this court, by section 3776, Revised Statutes, 1879, it is ordered that judgment be entered here in favor of respondent, against appellants, for the sum of three thousand dollars, the penalty of the bond sued on, to be satisfied upon the payment of the sum of $2,503.28, with six per cent, interest thereon from the date of the rendition of the judgment in the circuit court, and that execution issue accordingly, and that appellants recover the costs of their appeal and have judgment and execution therefor.